Szalapski v. Schwartz, No. 2003/8830.

CourtUnited States State Supreme Court (New York)
Writing for the CourtRICHARD A. DOLLINGER
Citation2011 N.Y. Slip Op. 52510,35 Misc.3d 1219,951 N.Y.S.2d 84
PartiesRobert F. SZALAPSKI, Plaintiff, v. Jeanne T. SCHWARTZ n/k/a Jeanne T. Szalapski, Defendant.
Decision Date29 March 2011
Docket NumberNo. 2003/8830.

35 Misc.3d 1219
951 N.Y.S.2d 84
2011 N.Y. Slip Op. 52510

Robert F. SZALAPSKI, Plaintiff,
v.
Jeanne T. SCHWARTZ n/k/a Jeanne T. Szalapski, Defendant.

No. 2003/8830.

Supreme Court, Monroe County, New York.

March 29, 2011.


Kaman Berlove, Marafioti, Jacobstein & Goldman, LLP Stephen M. Jacobstein, Esq., of Counsel, Rochester, NY, for Plaintiff.

Alexander Korotkin, Esq., Rochester, NY, for Defendant.


RICHARD A. DOLLINGER, J.

Plaintiff/father seeks to reduce his child support obligation because he has been unable to find comparable employment in the geographic area where his children live. Defendant/mother opposes the application, arguing that because of the father's unique talents, he must diligently search for employment in a broader geographic area, but has failed to do so.

At the heart of this dispute is whether a parent with substantial child support obligations, and unique job skills, is required as a matter of law to expand his search for employment if the consequence of accepting employment far away may diminish his visitation with his children. The father moves by order to show cause to modify his child support obligation. Mother opposes the application, and cross-moves to transfer the dependency exemptions from the father to her and for attorneys fees.

THE FACTS OF THIS CASE

The parties have three children, ranging in ages from 10 to 15. When the parties were divorced in 2005, the father earned $82,000 annually and the mother earned approximately $6,000. Based on these incomes, the father paid $1,826.49 monthly in child support.

The husband is a “multi-disciplinary physicist,” who possesses a doctorate in physics and had a career in academia before serving as a staff engineer. The father states that he left academics in 2004 and elected to stay in western New York to accommodate his family. He worked in software design for which he had only marginal qualifications. In July 2010, the father was laid off from his employment and was paid severance payments, roughly equal to his then salary, until October 19, 2010. After his severance ended, he received unemployment insurance benefits of $405 per week, but the child support enforcement unit was intercepting $202 of each week's allotment, leaving him with less than $160 (after taxes) each week.

The father produced a statement of net worth, indicating that he lived in a rented apartment, lived off credit card debt, and had barely enough money to pay for food and other living expenses. He lists his monthly expenses as $5,934. In his affidavits before the Court, he notes:

[T]here is not a big call for my particular skills in this region of the country and the high tech jobs that may have been here have dried up with economy. If I could move to a different part of the country, there would be more opportunities for someone with my particular educational background and skills but I cannot leave my children. Therefore, I am resigned to seeking employment in the western New York area.

As part of his application to this Court, the father has a lengthy list of employment search efforts and job interviews “over the past few years.” He avers that he has been told that he is overqualified. There is no corroboration of that assessment by any other witness. In fact, there is no corroboration of any the husband's allegations-there are no expert opinions and no sworn statements from any other witnesses.

The father indicates that he “recently” interviewed for a visiting assistant professor position at a local college but was not hired. He also attests that he applied for teaching positions at University of Rochester in 2009 and 2010 but there is no assertion that he has made any applications since the end of his severance pay in October 2010. (He recites that he “applied” for positions but there is no indication that the applications post-date the termination of severance payments.)After he lost his job, the husband describes enrolling in the New York State Department of Labor Self–Employment Assistance Program (SEAP).1 He attests that he has started an online physics and math tutoring service, which he anticipates may achieve profitability in 2012. He also has participated extensively in the Entrepreneurs Network sponsored by the County of Monroe Industrial Development Agency and High Tech Rochester. However, his affidavit indicates no job leads from this participation. The father also garnered adjunct teaching positions at the State University of New York, teaching three courses, but the net earnings from these positions are less than $250 per week. He has also qualified for a National Science Foundation scholarship to return to college and earn a teaching degree, after which he will be required to teach in a high-needs district. He estimates that two years from now he could earn more than $50,000 a year with the additional training, but until then, his annual income is projected to be less than $10,000.

The husband also submits a list of employment opportunities which he pursued, but these applications relate to 2004, and several opportunities in 2007–2008, all of which predate his 2010 loss of employment. He also recites a series of seminars and networking groups in which he participates, but there is no evidence that these networking experiences have or will lead to future employment.2 The father, while seeking to establish his job search efforts, also presents evidence of the mother's current employment and income, but at this stage, when he is seeking to modify his obligation, the Court declines to consider her income as relevant to the husband's entitlement to modification.

In response, the mother suggests that the father, because of his unique skills and experience, should be required to engage in a nationwide search for employment. She argues that his search has not been “diligent” because, based on his affidavit, he has only made “some unspecified contacts limited in geographic area.” 3 She adds that most of his job search efforts pre-date his latest loss of employment and do not include any specific searches. 4

The mother also argues through her counsel that the father has an obligation to support all three of his children. Under the current circumstances, it is undisputed that the father only has contact with one of the three. She argues that when the father claims he neglected employment opportunities in other geographic areas to be near his youngest son, he was also sacrificing the support needs of his two older children, with whom he has little contact. She claims that the support needs of all three children require that the father expand his geographic area for his job search.

In support of this argument, the mother notes that the Monroe County Family Court recently changed the custody of the three children from joint to sole custody with the mother. The youngest son has visitation with the father and the order requires counseling for the father and all his children. The order was issued in October 2010, nearly simultaneously with the father's loss of his severance pay. The mother alleges, without contradiction, that the father has contact only with the youngest child and that she provides the “vast majority of care for the children.” Lastly, she argues, somewhat sardonically, that the children would be better off if the father “began working at McDonald's.” 5

The husband submitted a responsive affidavit and argues that after he lost his most recent employment, he “networked heavily, which is one of the main ways to actually obtain a job in this area.” He asserts that the has been “applying to posted jobs and meeting with some headhunters.” The husband describes, at length, his admission into the Department of Labor Self–Employment Program and his applications for teaching positions at local colleges. He adds that requiring him to perform a nationwide search would be “very unreasonable” because of his three children in Rochester. He states that “they are the most important thing to me in my life and I am not going to leave them.”

THE CRITERIA FOR MODIFICATION BASED ON REDUCED INCOME

Where the change in circumstances is the loss of employment, a party seeking a downward modification must make a good-faith effort at seeking re-employment commensurate with his or her qualifications and experience. Davis v. Davis, 13 A.D.3d 623, 624, 787 N.Y.S.2d 113 (2d Dep't 2004), citing Madura v. Nass, 304 A.D.2d 579, 580, 756 N.Y.S.2d 890 (2d Dep't 2003); Austein–Gillman v. Gillman, 292 A.D.2d 5324 (2d Dep't 2002).6 The proper amount of support to be paid is determined not by the parent's current economic situation, but by the parent's assets and earning capacity. See Hickland v. Hickland, 29 N.Y.2d 1, 5–6, 323 N.Y.S.2d 161, 271 N.E.2d 694 (1976). The party seeking the modification bears the burden of proof. Comstock v. Comstock, 1 A.D.3d 308, 766 N.Y.S.2d 587 (2d Dep't 2003). If the husband in this case fails to establish a prima facie showing of a diligent search, then this court may deny his petition without the need for an evidentiary hearing. Barson v. Barson, 32 A.D.3d 872, 821 N.Y.S.2d 237 (2d dep't 2006); Stirber v. Stirber, 139 A.D.2d 727, 527 N.Y.S.2d 983 (2d Dep't 1988); L.D. v. A.D., 2008 Misc. LEXIS 2432 (Sup.Ct. Nassau Cty.2009) (where the movant's paper fails to make a prima facie showing of such a change, the motion will be denied without the need to conduct a hearing).

Here, the dispute arises on whether:

(a)he meets the criteria of a “diligent search for employment” in the local job market; and,

(b)if comparable employment is unavailable locally, is the husband required to seek it elsewhere and, if so, how far does he have to travel and/or relocate?

ADEQUACY OF THE LOCAL JOB SEARCH

The parties agree, as a preliminary step, that the initial threshold for the husband is to establish a “diligent job search” in the Rochester/Monroe County area. See Jelfo v. Jelfo, 81 A.D.3d 1255, 916 N.Y.S.2d 427 (2011); Simmons v. Simmons, 26 A.D.3d 883, 809 N.Y.S.2d 709(4th...

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