Cox v Cox
Annotate this CaseDecided on April 14, 2009
Supreme Court, Nassau County
John Cox, Plaintiff,
against
Vicky Cox, Defendant.
03-203416
Anthony J. Falanga, J.
This is a post judgment of divorce application by the plaintiff (hereinafter husband) for an order modifying the parties' judgment of divorce so as to grant him a downward modification of his obligation to pay child support on the ground of unanticipated and unreasonable change of circumstances.
The parties were divorced pursuant to a judgment dated December 22, 2004. Their stipulation of settlement dated August 3, 2004, was incorporated but did not merge in the judgment of divorce. Pursuant to said judgment and stipulation, the husband is obligated to pay child support of $1650.00 a month ($19,800.00 a year) for the parties' daughter, Victoria, born in November 1996. Said stipulation recites that the husband's income was $123,094.00 and the wife's income was zero. The husband is required to make three payments to the wife totaling $30,000.00 denominated as maintenance. Despite the vast disparity in the parties' incomes, the stipulation requires that the husband pay only 50% of the child's uncovered medical expenses and college. The wife is required to pay 100% of the cost of child care and extracurricular activities, as well as any pre college educational expenses.
In support of the instant application the husband alleges the following: his employment with Verizon was terminated on November 28, 2008 due to downsizing; his present wife with whom he has two minor sons also lost her job with Verizon; he attempted to obtain a six month deferment on his mortgage payment of $3177.00 a month, but the lender refused the request; his home is in the process of foreclosure; he has no option but to file bankruptcy; he was earning $3700.00 biweekly before he lost his job; his present income is $1741.50 a month in unemployment benefits; his child support obligation equals 95% of his income; he is making diligent effort to obtain employment.
The defendant pro se (hereafter wife) opposes the application and alleges the following: she resides in florida with Victoria; she earned $31,193.00 in 2008 and less than $29,000.00 in 2007; on or before December 3, 2008 (within days of his termination from Verizon) the husband [*2]filed a petition in the Nassau County Family Court for a downward modification of his child support obligation; the hearing of said petition, calendared for December 18, 2008, was adjourned because the husband failed to produce financial records including W2s and a copy of his severance package plan; on the next hearing date, February 11, 2009, the husband produced a W2 for the year 2007 showing that he and his present wife had earned $389,000.00 in that year; the husband still has not disclosed his severance package; he stated under oath before the Support Magistrate that he believed his severance benefits exceeded $125,000.00; on March 5, 2009, the husband withdrew the Family Court petition; he filed the instant order to show cause on March 10, 2009; he failed to pay child support due for March 2009 as well as $298.35 for his share of the child's orthodontia expense.
The husband's 2007 income tax return indicates that he earned $318,346.00 and his present wife earned $95,995.00 bringing their total earnings to $414,341.00. Said tax return further indicates that the husband and his present wife sold Verizon stock worth $498,458.00 on June 6, 2007 without incurring any capital gain on the sale. The husband and his present wife had gross income of $912,799.00 in 2007. The defendant wife herein had to support herself and Victoria on income of less than $49,000.00 in 2007. The wife did not seek an upward modification of child support notwithstanding the substantial increase in the husband's income from approximately $123,000.00 in 2004 to approximately $318,000.00 in 2007.
The husband's W2 for the year 2008 shows that he earned $476,298.00 from Verizon. As no copy of his and his present wife's 2008 tax return has been provided, the Court has no ability to ascertain whether they sold Verizon stock in 2008; and as no W2 was produced for the present wife for 2008, the Court cannot calculate her income for that year. As the husband was last employed on November 28, 2008, and as his income from Verizon in 2008 exceeded his 2007 Verizon income by $157,952.00, it appears his severance benefits totaled over $150,000.00 in 2008. The husband has not stated whether or not his severance benefits extend into 2009 or beyond. His net worth affidavit sworn to on February 27, 2009 indicates he will owe federal taxes in April 2009 of over $28,000.00, but the husband has not provided a copy of his 2008 tax return.
The husband's net worth affidavit sets forth annual expenses, including child support for Victoria, of approximately $130,000.00 a year, well below his income for the past two years. His affidavit of net worth indicates that he owns the marital residence, vacant real property, two automobiles, his pension, and he has $2000.00 in the bank. He has no debt other than two car loans and first mortgages on his home and on the vacant land. Where's the income he and his present wife earned over the past two years? Where are the proceeds of the June 2007 sale of Verizon stock? As he personally earned almost $500,000.00 in 2008, why would the husband allow his home to go into foreclosure? Why would he contemplate filing bankruptcy when he has no dischargable debt? Why would the husband swear under oath that he was earning $3700.00 biweekly when he lost his job in November 2008, when in fact he earned $476,298.00 in 2008? [*3]
Knowing that he would receive severance benefits in excess of $150,000.00 and that he would earn almost $500,000.00 in 2008, excluding his present wife's earnings for that year, it was an abuse of the judicial process for the husband to file a petition for a downward modification in the Nassau County Family Court on or about December 3, 2008, and the instant application is clearly forum shopping. It is unfathomable to this Court that after earning the sums set forth herein above for the years 2007 and 2008, the husband claims to be entitled to a downward modification of his obligation to pay child support of less $20,000.00 a year. If the husband is in true financial straights perhaps he should sell his two automobiles and relieve himself of the auto loan payments of almost $1200.00 a month. By purchasing a modest car, he will be able to apply these loan payments toward his child support obligation.
A payor's income is not determined on actual earnings, but requires an assessment of the payor's overall financial circumstances. Such assessment is to be based, in part, upon said party's past earnings, actual earnings, capacity to earn and educational background (see, Morrissey v Morrissey, 259 AD2d 472; Zwick v Zwick, 226 AD2d 734). A party's obligation to pay child support is not determined by his or her actual present income but rather by the ability to provide support (see, Ellenbogen v Ellenbogen, 6 AD3d 1026; Matter of Bouchard v Bouchard, 263 Ad2d 714; Matter of Lutsic v Lutsic, 245 AD2d 637). Whether a change in circumstances has actually occurred is determined by comparing the payor 's financial status at the time of the execution of a stipulation of settlement with his or her financial status at the time of the modification application. The payor does not meet this burden by merely presenting vague, unsubstantiated financial information to the Court. ( Rosen v Rosen, 193 AD2d 661).
In the case at bar, the husband suffered an involuntary loss of employment on November 28, 2008. Nevertheless, in view of his extraordinary earnings in 2007 and 2008, and in view of the fact that his 2008 severance benefits alone (over $150,000.00) exceeded his annual income set forth in the parties' stipulation of settlement ($123,000.00), he has failed to demonstrate prima facie that he has sustained an involuntary unreasonable change in his financial circumstances. Accordingly, his motion is denied.
This constitutes the decision and order of the Court.
E N T E R:
_________________________
Anthony J. Falanga, Justice
Supreme Court, Nassau County
Dated: April 14, 2009
Mineola, NY
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