Recent Posts in Post Judgment Motions Category

In the below decision from the Appellate Division Third Department the court enforces a Family Court entry of Judgment that changed custody from the mother to the father.  The mother appealed, and argued that her counsel was ineffective, that the Family Court was biased against her, amongst other arguments, all of which the court dismissed.  This decision is informative because it shows what must be proved in order to change a custody order.  It also illustrates how to create a sufficient record to allow an appellate court to affirm a decision.

Matter of M. v. T.

Appellate Division Third Department

Memorandum Opinion and Order

Edward Spa in, J.

Appeals (1) from an order of the Family Court of Ulster County (Mizel, J.), entered August 21, 2007, which granted petitioner's application, in three proceedings pursuant to Family Ct Act article 6, to modify a prior order of custody, and (2) from an order of said court, entered December 15, 2008, which denied respondent's motion to vacate the modification order.

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of a son born in 1998. Upon divorcing in 2002, they stipulated to shared custody and equal parenting time. In January 2005, the father commenced this modification proceeding requesting sole custody alleging that the mother was exhibiting increasingly strange behavior and making poor decisions, that he was concerned about her mental health and the safety of the child, then age 6, and that the mother had recently become estranged from her two teenage daughters (born in 1987 and 1989, from another marriage) who had been placed in the custody of their maternal grandmother. Family Court signed an order to show cause on January 14, 2005 ordering a psychological evaluation of all parties and granting the father temporary custody of the child, which the court continued under a series of modified temporary orders. Following protracted proceedings (which began in January 2005 and continued until the court issued its decision in mid-2007), including the fact-finding hearing (spanning 2006-2007) — the court awarded the father sole legal and physical custody.   ¹  The mother — whose initial visitation was supervised by court order until the father consented to unsupervised visitation in August 2005, with overnight visits remaining supervised — was awarded unsupervised visitation every Thursday evening for three hours and on alternating weekends for nine hours on Saturday and 8-10 hours on Sunday, and a holiday visitation schedule was set. The father's request that the mother's visitation be supervised until completion of mental health counseling was rejected, while the mother's request (also advocated by the Law Guardian) for overnight visitation was denied.

Toward the end of the fact-finding hearing, Family Court held a sanction hearing addressed to the question of what role the mother's trial counsel had played in the improper disclosure to the mother and her treating psychiatrist, Stephen Hermele, of the court-ordered confidential psychological evaluation conducted by psychologist Claude Schleuderer; that evaluation of all of the parties and their families and its addendum (hereinafter the psychological evaluation) was memorialized in reports dated November 14, 2005 and January 30, 2006. Concluding that the mother's trial attorney was responsible for the disclosures in violation of a confidentiality stipulation entered on the record (in April 2005) by the mother's prior counsel, the court ruled that Hermele was precluded at the fact-finding hearing from testifying to his opinion or criticism of the psychological evaluation (which recommended sole custody to the father, with supervised visitation for the mother), but allowed Hermele to testify to his treatment and opinion of the mother's mental health.

At the fact-finding hearing, Hermele so testified in support of the mother; Schleuderer was not called to testify by either parent or the Law Guardian, but his psychological evaluation was admitted into evidence. The sanction decision is not directly before us on this appeal, except to the extent that the mother asserts that she was denied meaningful representation at the fact-finding hearing and (joined by the Law Guardian) that the mother and child were penalized for the perceived misconduct of the mother's trial attorney. The mother now appeals, through counsel and pro se, seeking a return to joint custody or increased visitation including overnight visitation. The child's appellate Law Guardian advocates in favor of overnight visitation with the mother or, in the alternative, remittal for additional testimony by Hermele.   ²The mother has also appealed Family Court's denial of her motion to vacate the modification order.

We are not persuaded by the mother's main contention on appeal, that the award of custody to the father and denial of overnight visitation to the mother lack a sound and substantial basis in the record. Initially, while Family Court in its 97-page custody decision made no express finding that the father had demonstrated the requisite significant change in circumstances indicating a real need to modify the stipulated custody order to further the child's best interests, the hearing record is complete and, upon our independent review authority, we find that the court's extensive factual findings are fully supported by the record and provide an ample basis for concluding that such a change in circumstances was proven here (see  Matter of Cree v. Terrance, 55 AD3d 964, 966-967 [2008], lv denied 11 NY3d 714 [2008];  Matter of Bedard v. Baker, 40 AD3d 1164, 1165 [2007]).

The testimony at the hearing, including that of the father, his adult son, the maternal grandmother, the child's day-care provider, the mother's 19-year-old daughter, the mother's brother and the mother herself, established that the mother's behavior became increasingly inappropriate, uncooperative, hostile and paranoid, often in front of the child, beginning in October 2004 and continuing during the lengthy fact-finding hearing. This led to frequent heated confrontations with the father and other family members in the child's presence, particularly when custody of the child was being exchanged or routine matters pertaining to him were being discussed. The resulting deterioration in the parties' relationship and inability to communicate or coparent provided a significant change in circumstances and warranted revisiting the agreed-upon joint custody arrangement (see  Matter of Kilmartin v. Kilmartin, 44 AD3d 1099, 1101 [2007];  Posporelis v. Posporelis, 41 AD3d 986, 989 [2007]).

Turning to the primary concern in this matter, as with all child custody determinations, the best interests of the child, courts are required to consider all relevant factors, including "maintaining stability in the child's life, the wishes of the child, the quality of the home environment, each parent's past performance, relative fitness and ability to guide and provide for the child's intellectual and emotional development, and the effect the award of custody to one parent would have on the child's relationship with the other" (Matter of Zwack v. Kosier, 61 AD3d 1020, 1022 [2009], lv denied 13 NY3d 702 [2009]  [internal quotation marks and citations omitted]). Moreover, the parties' stipulated custody agreement is afforded less weight than an order following a plenary hearing and is only one factor to consider (see  Matter of Colwell v. Parks, 44 AD3d 1134, 1135 [2007]). Given Family Court's ability to observe the witnesses' demeanor and assess their credibility, "its factual findings are accorded great deference and will not be disturbed unless they lack a sound and substantial basis in the record" (Matter of Siler v. Wright, 64 AD3d 926, 928 [2009]).

First, the record reveals that continued joint custody has often required police intervention, would further harm this child and is unworkable (see  Matter of Williams v. Williams, 66 AD3d 1149, 1150-1151 [2009]). Further, the testimony of numerous witnesses who observed or interacted with the mother over a two-year or more period established that they were all concerned for her and the child. The mother's behavior had grown increasingly strange, unpredictable, confrontational and inappropriate, often in the child's presence, causing him fear, confusion, anxiety, humiliation and stress. Incidents occurred at his sporting events, during custody exchanges, at the parties' homes and those of family members and in public, in which the mother disparaged the father and other family members, publicly made wild unsupported accusations, greatly overreacted or acted out of control — screaming bizarre accusations — and said and did inappropriate things that were inevitably harmful to the child's overhearing ears. While a precise diagnosis was not established, the record overwhelmingly demonstrates that "the mother's mental state has directly affected her abilities as a parent" (Matter of Sloand v. Sloand, 30 AD3d 784, 785 [2006]). Shortly after the father filed this petition, she was involuntarily committed to the mental health unit at a local hospital for 2½ weeks when another family member reported her behavior and threats to the police; she was ultimately released following a hearing upon the determination that — at the time of the hearing — she did not pose a danger. Hermele, who testified that his weekly treatment of the mother since May 2005 focused on her acute psychiatric problems — which he identified as lifelong anxiety disorder, phobic symptoms, posttraumatic stress, obsessive chronic worrying, reality problems, misperception of others and overreactions to situations — nonetheless opined that there was no psychiatric reason for limiting contact with the child. However, as Family Court pointed out, Hermele had never seen her interact with any of her family members or the child, and had never observed any of the alarming behavior to which nearly every one of the extended family members testified.

Schleuderer's initial psychological evaluation reflects that he interviewed   ³  the mother, her two daughters and their father, the father, the child and the maternal grandmother; each of the parties herein was observed interacting with the child and his two sisters, and individually. Schleuderer concluded that the mother's "mental state significantly impairs her parenting capacity," that she needs psychotherapeutic treatment and that she verbalizes her delusions and accusations in front of the child despite knowledge that they are inappropriate. He recommended that the father be granted sole custody and that all contact between the child and mother be supervised. In his brief addendum report, Schleuderer recounted that the mother's other treating psychiatrist in 2005 tentatively concluded that she was "paranoid schizophrenic" although "99 percent of the time she is reality based."

With regard to the father, the evidence established that he is an electrician supervisor and had built a five-bedroom home during the trial where he, the child, his adult son and one of the mother's daughters reside. Family Court found that during the extended years of temporary custody, the father followed the mother's visitation provisions, encouraged the child's relationship with extended family, secured counseling to help the child cope with the turmoil, was involved in his activities and school — where his grades have been "very good" — and had assumed an "appropriate parental role" toward him. Schleuderer concluded that the father's relationship with the children was "exemplary," that he "has their best interests at heart" and that they feel "securely loved by him." The court found the mother's contrary testimony to be "unbelievable" at points, "evasive and inappropriately hostile," and we discern no basis upon which to disturb the court's first-hand credibility determinations. The court's determination that the mother, if granted custody, would not foster a relationship between the child and the father (or extended family) is fully justified, particularly given the mother's threats to withhold contact between them.

Upon review of the record and considering all relevant factors (see  Matter of Zwack v. Kosier, 61 AD3d at 1022), we find abundant support for Family Court's conclusion that an award of sole custody to the father best serves the child's interests. We have also carefully considered the requests of the mother and the child's attorney for overnight visitation, but do not find that the (now dated) record before us supports disturbing the court's implicit and discretionary conclusion that overnight visitation would be inimicable or detrimental to the child's welfare (see  Matter of Maziejka v. Fennelly, 3 AD3d 748, 749 [2004]). While the court should have expressly addressed this request, the record permits our doing so. Upon the exercise of our independent review powers, we find that the foregoing evidence regarding the mother's behavior and instability in the 2004-2006 period of time provides a sound and substantial basis for the denial of overnight visitation (cf.  Matter of Daniel v. Pylinski, 61 AD3d 1291, 1292-1293 [2009];  Matter of Rivera v. Tomaino, 46 AD3d 1249, 1249-1250 [2007]).

The mother's counsel on appeal further argues that the mother was denied the effective assistance of trial counsel, a proposition the mother specifically rejects in her pro se brief in which she argues that the real prejudice is attributable to Family Court's alleged errors and bias against her. Upon careful review, we find that trial counsel provided aggressive, meaningful representation throughout these proceedings, and that the mother did not suffer actual prejudice as a result of the claimed deficiencies in counsel's advocacy or the court's sanction decision   ⁴  (see  Matter of Kemp v. Kemp, 19 AD3d 748, 751 [2005], lv denied 5 NY3d 707 [2005]; cf.  Matter of Martin v. Martin, 46 AD3d 1243, 1246-1247 [2007]). The mother's counsel presented witnesses, including Hermele, who testified that she was capable of parenting the child without supervision, and we cannot conclude that counsel's decision not to call Schleuderer himself for cross-examination or not to call another expert witness to counter Schleuderer's opinion regarding the mother's mental health constituted ineffective assistance, given the speculative benefit that such testimony would have had on the outcome (cf.  Matter of Martin v. Martin, 46 AD3d at 1246-1247).

Likewise, we are not persuaded by the mother's pro se claim that Family Court was, from the outset, biased against her, or by her appellate counsel's contention that the outcome was prejudiced by the court's scorn for her trial counsel's perceived misconduct or misstated legal arguments. Indeed, the court rejected Schleuderer's strong recommendation that all contact between the child and the mother be supervised (as the father had requested), based in part upon its conclusion that the mother had enjoyed "unsupervised visitation for some time without major repercussions to [the child's] well being." This reflects that the court was not unduly reliant upon Schleuderer's evaluation and, in fact, evenly considered all of the testimony and evidence in rendering its custody determination.

To the extent that the mother challenges Family Court's decision to sign an ex parte order to show cause at the outset of these proceedings on January 14, 2005 granting sole temporary custody to the father, the issuance of a permanent order of custody following a trial renders this issue moot (see  Posporelis v. Posporelis, 41 AD3d at 988). In any event, the father made a sufficient showing of extraordinary circumstances in his ex parte application (see  id.), and the subsequent orders extending the father's temporary custody while progressively increasing the mother's parenting time were made after the mother, represented by counsel, had an opportunity to be heard.

Finally, contrary to the mother's pro se claims, Family Court did not abuse its discretion in denying her motion to vacate this custody determination based upon newly discovered evidence (see CPLR 5015 [a] [2]; see also  Maddux v. Schur, 53 AD3d 738, 739 [2008]). The mother, as movant, neither demonstrated that the "new" evidence could not have been discovered, with due diligence, prior to the conclusion of the trial nor that, had it been introduced at trial, it "would probably have produced a different result" (CPLR 5015  [a] [2]; see  Matter of Commissioner of Social Servs. of Ulster County v. Powell, 39 AD3d 946, 948-949 [2007], lv dismissed 9 NY3d 975 [2007]). While the mother submitted a letter from her prior counsel establishing that he had disclosed Schleuderer's November 2005 psychological evaluation report to Hermele, this only demonstrated Family Court's earlier error in attributing that disclosure to the mother's trial counsel; it did not affect the court's conclusion that trial counsel had improperly disclosed the evaluation reports (original and addendum) to the mother and the addendum to Hermele. While clearing up one point, this proof did not establish that allowing Hermele to testify without restriction regarding Schleuderer's evaluations would have produced a different custody result. As to the remaining proof submitted on the motion, Family Court correctly concluded that it concerned "collateral matters which were not significant to the court's final determination." The remaining contentions have been thoroughly reviewed, and we find that none warrants disturbing Family Court's fully justified determination that the best interests of the child are served by granting custody to the father, with regular parenting time to the mother.

Mercure, J.P., Rose and Garry, JJ., concur.

ORDERED that the orders are affirmed, without costs.

1. In its decision, Family Court also dismissed the father's family offense petition, but the court's resolution of the father's violation petitions directed at the temporary custody and visitation orders is not apparent from the court's decision or order, or the record on appeal. The issues raised on appeal are not directed at those petitions and, thus, they will not be addressed.

2. The father has not submitted a responsive brief on appeal.

3. At the time of the evaluation, petitions were pending for custody of the mother's daughters in separate proceedings and, thus, they and their father were interviewed to allow completion of a comprehensive evaluation of all affected family members.

When legislators and Judges craft laws and orders they often seek to make rules that are permanent and unchanging. The problem is that life is predictably unpredictable. So many divorce cases that were ended when the economy was strong and people were making a large amount of money are no longer equitable in a world where salaries have dropped precipitously, but expenses have remained high. Many agreements that once made sense, are now overly burdensome for the payer. Due to changes in income the courts have become flooded with requests for modifications of agreements. The article below from the New York Law Journal outlines these problems and gives some insight onto how these requests for modifications are being handled by the courts.

Is our law equal to the challenge of today?

By Harriet Newman Cohen and Tim James

The past year has been a time of drastic economic decline, with millions losing jobs, real estate and stock values plunging, businesses performing far below accustomed levels, investment funds exposed as Ponzi schemes and the reduction or elimination of year-end bonuses in fields where such bonuses are typically the major part of total compensation. One result has been an increased number of applications for downward modification of support obligations.

A March 28, 2009, New York Times article captured the zeitgeist in describing the alarming number of new modification cases, both among the marginal earners and the wealthy, that are overwhelming the Family Court calendars.

This article explores the statutory and case law governing applications for downward modifications of established maintenance and child support. It also asks the question, "Is our law as promulgated and defined through case law equal to the challenge of these economically troubled times?"

The Governing Law

Domestic Relations Law (DRL) §236(B)(9)(b) provides that a court "may annul or modify any prior order or judgment as to maintenance or child support upon...a substantial change in circumstances." But a stronger showing is required to obtain a modification of child support or maintenance when the amounts to be paid have been set by the parties themselves, in an agreement, incorporated in, but not merged with, a judgment of divorce, or resolving a support proceeding.

In Boden v. Boden, the New York Court of Appeals established the preferred status of agreements between the parties on such matters, declaring:

Where, as here, the parties have included child support provisions in their separation agreement, the court should consider these provisions as [contracts] between the parties and the stipulated allocation of financial responsibility should not be freely disregarded....Absent a showing of an unanticipated and unreasonable change in circumstances, the support provisions of the agreement should not be disturbed.

DRL 236(B)(9)(b) ratchets the standard up even higher with respect to modifications of maintenance established by agreement of the parties, specifying that "no modification of a prior order or judgment incorporating the terms of said agreement shall be made as to maintenance without a showing of extreme hardship on either party[.]" (Emphasis added.) Where the requisite showing is made, the court may modify the maintenance provision "for such period of time and under such circumstances as the court determines."

Five years after Boden, in Brescia v. Fitts, the Court of Appeals made it clear that the requirement of showing an "unreasonable and unanticipated change of circumstances" to obtain a modification of child support applies only "when the dispute is directed solely to readjusting the respective obligations of the parents to support their child," and not where "the child's right to receive adequate support is at issue."

In the latter case, a court is free to exercise its discretion in determining how much child support is required to ensure that the child has adequate support and order an upward modification consistent with that determination. It is applications for downward modifications, however, that are the focus of this article.

Malingerers Beware

In the decades since Brescia and Boden, the courts have established demanding standards for downward modifications of spousal and/or child support.

Regardless of whether relief is sought from the mandate of a court alone or from the provisions of an agreement between the parties, the courts, wary of malingerers, have looked to the payor's "capacity to generate income" (Michelle F.F. v. Edward J.F., Jr., O'Brien v. McCann) or, more broadly, his or her "ability to provide support" (Freedman v. Hornike).

Thus, the courts require that a payor seeking a downward modification based on the loss of a job or decreased income demonstrate that his unemployment or underemployment was not of his/her own doing, and that he/she has made diligent efforts to find appropriate alternative employment. Movants who fail to do so typically see their motions denied.

In the recently decided Krup v. Fehr, however, Justice Jeffrey S. Sunshine gave the movant father a second bite of the apple. (See also Lonsdale v. McEwen, discussed below.) At issue was the $2,000 per month in child support that the father had agreed to pay for one child under a stipulation entered into when he was earning $170,000 a year. There was no dispute that his income had decreased to $90,000 at the time he made the downward modification motion.

The judge granted the father's application to the extent of ordering an evidentiary hearing based, among other things, on the father's failure "to offer any evidentiary support for his assertion that this decrease in earnings was not of his own making." The judge also directed that there be pre-hearing discovery. The decision provides a virtual primer on the case law governing downward modifications.

Although the court's focus is typically on changes in the payor's financial circumstances, changes in the financial circumstances of the payee may also be relevant on a motion for downward modification of maintenance or child support. For example, the wife's having gained employment was cited as a factor, or the factor, warranting a reduction in the maintenance amounts awarded in the judgment of divorce in Cross v. Cross, Bofford v. Bofford and Lipow v. Lipow.

The courts have emphasized repeatedly that, on any motion for downward modification of maintenance or child support based on the finances of the payor, a determination as to whether the requisite "change in circumstances" has been shown requires "comparing the payor's financial situation at the time of the application for a downward modification with that at the time of the order or judgment."

In making that comparison, the courts are concerned not just with the payor's income but with his or her overall financial circumstances (including assets and ability to maintain his/her own lifestyle in the face of alleged financial hardship) as indicia of the payor's ability to continue paying maintenance or child support at the same level.

'Unanticipated' Is a Must

Case law dating back to Boden establishes that where a party seeks modification of child support provisions contractually agreed to by the parties, the "change of circumstances" sufficient to satisfy the modification standard must have been "unanticipated" at the time of the agreement.

The courts have typically treated loss of employment as "unanticipated" without much discussion of the point. However, there have been cases in which the courts have held that the loss of employment was not an unanticipated change of circumstances.

For example, in Ellenbogen, the movant's business "had already experienced a precipitous decline in profitability and the loss of a major client at the time he entered into the stipulation," and in Commissioner of Social Services, the movant was on notice for eight years that he would lose his teaching license if he failed to obtain a master's degree; accordingly, his loss of his license for failing to obtain that degree was not unanticipated.

Showing, however, how fact-specific these cases are is Lonsdale v. McEwen. There, the separation agreement incorporated into the judgment of divorce specifically provided for a reduction in basic child support from $48,000 per year to $33,600 per year in the event that the father's income ($1.3 million per year at the time of the separation agreement in late 2001) should fall to $600,000 or less. The majority held that the father was entitled to a hearing on his motion, where "the parties to the agreement anticipated the loss of defendant's lucrative position but neither anticipated nor addressed either a prolonged period of unemployment or so huge a reduction in salary."

In late 2002, less than a year after the agreement was made, the father had lost his job. He was unemployed for most of 2003 and 2004. He had total income during those two years of only about $150,000, including the payments he received in 2004 from the job he got towards the end of that year which would pay him $200,000 a year prospectively.

The two dissenters, agreeing with the court below, would have denied the downward on the papers and without a hearing, as the father's loss of his job and the drastic reduction in income he suffered was far from "unanticipated" in that the parties had expressly contemplated that possibility and provided for it.

Successful Motions

If a downward modification movant has cleared all of the hurdles discussed above, the outcome of the motion will turn on whether the court views the change in circumstances as sufficiently "substantial," "unreasonable" or "extreme-hardship"-inducing (depending on which standard applies) to warrant a modification. Sometimes the court will grant but time-limit the relief.

This happened in A.R. v. N.R., where the court found that the husband had made a showing of "extreme hardship" in support of his motion for downward modification of both his maintenance and child support obligations (totaling $84,000 per year) under a separation agreement. The husband had suffered a "drastic reduction in income, from $300,000 per year at the time of the divorce to $66,000 per year (a 78 percent drop), through no fault of his own."

The court rejected the wife's contentions that the husband was living a "high lifestyle" and had "undisclosed cash," or more income than he claimed. But finding that the husband's prospects for the future were good, the court fashioned a creative decision, opting to grant a 13 1/2 month suspension of maintenance payments and a short (1/2 month) reduction of his child support obligation instead of a permanent modification.

Similarly, in Sheila C. v. Donald C., the court affirmed a one-year reduction in the movant's maintenance payments, holding that: "Respondent satisfied the extreme hardship standard. However, because he did not prove that his income will never recover, his request for a permanent reduction of his maintenance obligation was properly denied."

Applicant Beware

But if the downward circumstances are of the payor's own making, the court will not grant relief. So where an orthopedic surgeon decided to take an academic position in place of his former private practice, the court would not grant relief, finding that the reduction in his income was of his own doing.

But even apart from that issue, the court found the 31 percent decrease in the surgeon/former husband's income from $134,000 a year to $91,000 insufficient to establish the "extreme hardship" required to warrant a downward modification of the agreed-upon maintenance in light of, inter alia, his "comfortable, even luxurious lifestyle," his recent purchase of a house for $220,000 and his "not insubstantial" $91,000 income.

And job losses alone will not make an "involuntary, unreasonable change in financial circumstances" sufficient to warrant a downward modification, as the former husband learned in Cox v. Cox. He sought to be relieved of his $1,650-per-month child support obligation under a stipulation of settlement, pointing to the loss of his job with Verizon in late 2008, his new wife's loss of her job with Verizon at the same time and the fact that the $1,650 per month he was paying in child support now constituted 95 percent of his $1,741 per month in unemployment benefits. The court denied the relief, on the reasoning that:

• The payee wife, with whom the parties' daughter was residing in Florida, earned about $31,000 per year at her job.

• The husband had earned $318,000 in 2007 from his employment with Verizon, almost $200,000 more than his income of $123,000 for 2004, as stated in the stipulation of settlement the parties signed in December of that year.

• The husband and his new wife had earned a combined $414,000 from their employment with Verizon in 2007, and in that same year had received $498,000 for the sale of Verizon stock, bringing their gross income for the year to $912,000.

• The husband alone had been paid $476,000 by Verizon in 2007, leading the court to conclude that he had probably received a severance payment of approximately $150,000.

The Catch-22

Because of the requirement that a movant for downward modification based on the loss of a job demonstrate that he or she has made diligent efforts to find new employment, some delay in moving is probably necessary in order to make a facially sufficient motion.

But such a delay can be costly where child support is concerned, because, statutorily, child support continues to accrue until the date on which an ultimately successful motion for downward modification is made, and once that obligation has been incurred, the courts can provide no relief from it.

DRL 236(B)(9)(b) provides that "[N]o modification or annulment shall reduce or annul any arrears of child support which have accrued prior to the date of application to annul or modify any prior order or judgment as to child support" (emphasis added). As the Court of Appeals explained in Dox v. Tynan.

Child support arrears must be awarded in full, regardless of whether the defaulter has good cause for having failed to seek modification prior to their accumulation. "If a party obligated to pay child support wishes to avoid making payment, such as where his or her financial circumstances have deteriorated, that party must make an affirmative request for relief" (Scheinkman, Practice Commentary, McKinney's Cons. Laws of N.Y., Book 14, Domestic Relations Law §244, at 752).

In May of this year, the Court of Appeals stressed the "strong public policy against restitution or recoupment of [child] support payments." Thus, every day of delay before moving for modification is another day to which any downward modification ultimately granted will not apply. And yet, to file before having established a record of diligent pursuit of new employment is to invite dismissal of the motion as facially defective.

So, Set Your Own Standards

Looking forward, divorcing parties (payors and payees) can achieve far greater flexibility with respect to the availability of modifications that take into account the ups and downs of life by agreeing, in a separation agreement or stipulation of settlement, to standards of their own choosing for modification.

In Vincent Z. v. Dominique K., the First Department reversed the Family Court and gave the father a downward modification based on the standards the parties had set for themselves, citing its earlier reasoning in Colyer v. Colyer that "parties to a separation agreement may contractually provide for a support modification on a lesser standard than legally required."

Law Is Malleable, Pragmatic

Wary of opening the floodgates too wide and thereby inviting constant litigation over the reasonableness of maintenance and child support obligations that have already been fixed, the Legislature and the courts set high standards that make successful applications for downward modifications the exception, rather than the rule.

But the law as defined over the years has within it all of the elements necessary to meet the economic crisis facing us today: hardship, unforeseeability, being in extremis. The challenge for our courts is, as always, to weed out the malingerers and to provide relief where appropriate. The law, as written and interpreted, is sufficiently malleable and pragmatic, not dogmatic, to mete out justice, even in these economically troubled times.

Harriet Newman Cohen is a member and Tim James an associate in Cohen Hennessey Bienstock & Rabin. Ms. Cohen is the co-author of 'The Divorce Book' (Avon Publishers, 1994).

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