Platt v Platt

[*1] Platt v Platt 2012 NY Slip Op 51583(U) Decided on August 22, 2012 Supreme Court, Monroe County Dollinger, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 22, 2012
Supreme Court, Monroe County

Christine R. Platt, Plaintiff,

against

William R. Platt, Defendant.



2011-14488



APPEARANCES:Steven M. Witkowicz, Esq.

16 Main Street East, Suite 410

Rochester, NY 14614

Attorney for Plaintiff

Robert E. Brennan, Esq.

2 State Street, Suite 1000

Rochester, NY 14614

Attorney for Defendant

Richard A. Dollinger, J.

In 2012, we live in an era of "extreme sports" and "extreme skiing." We debate "extreme politics." Even the New York songster Billy Joel wondered - "darling I don't know why I go to extremes." But, when the New York State Legislature included the phrase "extreme hardship" in the Domestic Relations Law [FN1] as a touchstone for determining when a modification of maintenance was permitted more than a fortnight ago, the Legislature gave little indication of how "extreme" the "hardship" had to be to qualify for a modification. DOM. REL. LAW §236 (B)(9)(b). [*2]

This Court now considers, after reviewing scores of judicial comments on the term, the extent of the "extreme" necessary to meet this Legislative test, when both the payor and recipient are in dire financial circumstances.

In March 2011, the parties entered into a separation agreement which provided that the 47-year-old husband would pay maintenance to the wife at a rate of $700.00 per month from the period of March 1, 2011 through February 1, 2015. The maintenance was back-ended, which provided that the maintenance payments would increase in later years to $1000 per month, after the couple's daughter had graduated from college. At the time that the parties entered into the agreement, the husband was employed and earning an annual salary of $68,000. The wife was disabled and receiving $721.00 per month in Social Security benefits, $60.00 per month in SSI benefits, and food stamps in the amount of $187.00 per month. After the parties were divorced, the husband's job was terminated and he began collecting unemployment benefits. This Court then reduced his maintenance obligation from $700.00 per month to $400.00 per month. In April 2012, the husband's unemployment benefits expired and he now moves for a suspension of his maintenance obligations until he regains employment. He claims that the unemployment benefits that he received until April 2012, were his sole source of income, and that he has engaged in a diligent and extensive search to obtain employment commensurate with his qualifications, both inside and outside of New York State.

The wife contends that the husband has failed to demonstrate that a continuation of the agreed upon maintenance obligation will result in extreme financial hardship to him. She argues that the husband's unemployment benefits were not the sole source of his income, and that he mischaracterizes his employment predicament when he states that he has been doing "an occasional odd job." Instead, she alleges that he has been doing various construction and home repair projects and works as a day laborer through a service, making between minimum wage and ten dollars per hour. She also claims that it is likely that the husband has received financial assistance from his parents since he lost his regular employment. Lastly, the wife argues that the husband's assertion that he made a good faith effort to find employment commensurate with his qualifications is conclusory. Simmons v. Simmons, 815 NYS2d 496 (NY Sup. Ct. 2004) aff'd, 809 NYS2d 709 (4th Dept. 2006); see also, Davis v. Davis, 197 AD2d 622 (2nd Dept. 1993); Szalapski v Schwartz, 35 Misc 3d 1219A (Sup. Ct. Monroe Cty 2011)

In his response affidavit, the husband contends that he did only one such home repair project in April 2012 for which he earned $180.00 and that he has not been steadily working doing construction and home improvement projects. Furthermore, he claims that he can no longer do such work because he sold his large power tools to pay for the parties' daughter's college tuition and other bills. He also argues that he did not receive any work as a day laborer. As evidence of the employment search, the husband provided the court with a three-page list of the positions that he has applied for, the approximate dates of the application, and the location of the prospective employer. Despite his efforts, he has not received an offer of employment. He asserts that it has been extremely difficult to find employment in the IT field because he lacks a college degree. Since his unemployment benefits expired, the husband admits he has received financial assistance from his parents, as they contribute to his rent and grocery bills. Significantly, at the time of this application, the husband's statement of net worth reveals that a checking account and 401(k) are his [*3]only assets. As of May 2012, he had a balance of $978.56 in his checking account. He had $9.54 in his savings account. He drives a 2005 car with a value of $5,498. He lists household furnishings at $1,000. As of May 17, 2012, the husband's 401(k) had a balance of only $4,302.00 which he has not withdrawn from because he plans to use this money to fund the parties' daughter's college expenses next quarter.[FN2] The husband has no other assets.

He lists debts to his attorney in excess of $2,000 and a $464 debt to his physician. He borrowed money from a relative to move back to Rochester. His 2011 income tax return lists $31,452 in earned income and then $10,024 in unemployment compensation. There is no evidence of any other income. His expenses, as mapped out in his statement of net worth, are meager but nonetheless substantially exceed his income. After he pays rent, telephone, groceries, auto payments and insurance, college loans and other sundries, his monthly expenses are $2,177.75.

The wife, in her response, paints an equally dismal fiscal picture. She receives social security disability and he payments are less than $1000 per month in benefits and food stamps. When the husband first lost his income, the wife was forced to spend down her share of the husband's retirement benefits, cancel her internet service and made other adjustments. In short, both parents face an uphill financial struggle.

A party seeking to modify the maintenance provisions of a judgment of divorce in which the terms of a separation agreement have been incorporated, but not merged, must demonstrate that the continued enforcement of these maintenance provisions would create an "extreme hardship." Pintus v. Pintus, 104 AD2d 866, 867 (2nd Dept. 1984); DRL § 236 (B) (9) (b). In addition, the movant must show that the loss of his or her income was unavoidable. Absent a prima facie showing of entitlement to a modification, the proponent has no right to a hearing. Rockwell v. Rockwell, 74 AD3d 1045, 1046 (2nd Dept. 2010); Vinnik v. Vinnik, 295 AD2d 339-40 (2nd Dept. 2002); Barden v. Barden, 245 AD2d 695, 696 (3rd Dept. 1997). If the court determines that a party has satisfied the "extreme hardship" standard, the court may modify the terms of the prior agreement for as long as necessary and to the extent that it deems proper. Cohen v. Seletsky, 142 AD2d 111,120 (2nd Dept. 1988); DRL § 236 (B) (9) (b).

Case law instructs this Court that what constitutes extreme hardship is a fact-specific inquiry that depends on the overall financial condition of the moving party. The "extreme hardship" standard is stricter than the previous modification standard of a "substantial change in circumstances." Cohen v. Seletsky, 142 AD2d 111,120 (2nd Dept. 1988). Extreme hardship in its plain meaning calls for a "substantial dislocation" of financial circumstances such that the party is almost lacking resources or shelter. V.P. v. C.P., 936 NYS2d 62 (NY Sup. Ct. 2011). As one Court noted:

it is the judgment of the court that the husband has not demonstrated extreme financial hardship which diminishes his ability to maintain his lifestyle, brings him below any poverty guideline, or compels him to liquidate assets or incur huge unmanageable debt. "Extreme hardship" is not merely the medical consequences of a maturing life but its plain [*4]meaning calls for a substantial dislocation of financial circumstances so that the litigant is nearly without resources or shelter

V.P. v. C.P., 936 NYS2d 62 at p. 8. See also Pintus v. Pintus, 104 AD2d 866, 868-69 (2nd Dept. 1984)(courts may consider the moving party's current employment status, gross income, income from other sources (including unemployment benefits), the moving party's employment history, and their ability to meet other financial obligations); S.S. v. M.S., 926 NYS2d 347 (NY Sup. Ct. 2011)(whether applicant has been forced to liquidate his assets to remain current with his obligations); Beard v. Beard, 300 AD2d 268, 269 (2nd Dept. 2002)(if unemployed, whether the applicant has diligently sought employment commensurate with his qualifications and experience); Houle v. Houle, 304 AD2d 992, 993 (3rd Dept. 2003)(only justified when the change in circumstances was unforeseen or unanticipated). In sum, no one factor is dispositive and the Court is required to search the record for guidance.

Here, a search of the factual landscape demonstrates that the husband has made a prima facie showing of extreme hardship. His statement of net worth and most recent income tax return document his chronic unemployment. He has no consistent source of income. He earns meager sums through daily labor. He admits that he relies on the financial contributions of his parents to meet his financial obligations such as rent and grocery bills. There is no evidence of the frequency or reliability of such parental contributions. This constitutes an appreciable change in circumstances which was unforeseen and unanticipated such that the husband would experience extreme hardship in the absence of a temporary suspension of his maintenance obligation.

The wife invites this Court to use its considerable discretion to impute income to a party where the party receives money, goods, or services from a relative. DRL § 240 (1-b) (b) (5) (iiv) (D)(court can attribute income to party based on money provided by relatives and friends); Simmons v. Simmons, 48 AD3d 691 (2nd Dep't 2008); Anonymous SR v. Anonymous GR, 17 Misc 3d 1116A (Sup. Ct. Nassau Cty 2007) pursuant to DRL 240(1-b)(b)(5)(iv)(D), a Court may consider "money, goods or services" provided by relatives and friends, in determining a party's income). This court declines to do so. As mentioned above, the evidence establishes that the husband is receiving small financial contributions from his parents to pay for his rent and grocery expenses (he characterizes these contributions as an advance on his inheritance). The size of the husband's expenses when compared to his meager income does lead the Court to consider why the husband does not have significant personal debts: after all, if his expenses exceed his income, then either he receives financial assistance from someone or his debts should be increasing. However, the wife presents no direct evidence of financial help from any other party, except for a vague suggestion that his family may be helping the husband through these hard times. There is insufficient evidence in the record as to the amount or frequency of these contributions. For these reasons, the Court declines to impute income to the husband.

The Court also considered whether the husband could continue his maintenance payments by incurring additional debt. The Court declines to require the husband to debt-finance his maintenance payments. The husband has no resources to cover such debts in the absence of income from employment. Any debt incurred by the husband to cover [*5]the maintenance payments would be, by definition, "unmanageable," because the husband has no income and insufficient assets to securitize any debt.

The husband's current level of income also places him well below the federal poverty limit for the western New York area. Under recent guidelines, available on the internet, the poverty guideline for a single person living in Monroe County is $8,942. See www.nyc.gov/html/hra/downloads/pdf/income_level.pdf (searched August 22, 2012). The federal poverty guideline for a single individual living in New York State is $10,890. See www.q1medicare.com/...Federal-Poverty...Guidelines-/495.html (searched August 22, 2012).[FN3] This Court notes that the wife's income elevates her just out of the federal poverty guidelines: her income from social security disability barely exceeds the guideline amount. But, based on the proof before the Court, the husband's income is well below the limit and only half the wife's total income. Certainly, the husband's dire financial circumstances is some evidence of "extreme hardship."

The court also declines to require him to invade his 401(k) to satisfy his maintenance obligation, as the wife suggests he should. The husband has less than $5,000 remaining in his 401(k). This Court, in a prior opinion, declined to require a nearly-retirement-aged parent to invade his 401(k) to fund his child's college education. L.L. v. R.L., — Misc 3d —, 2012 NY Slip Op 22170 (sup. Ct. Monroe County 2012). This Court will not require a similarly situated potential retiree to invade his meager retirement account to fund maintenance payments to his wife. This reluctance is reinforced because the husband attests that he intends to liquidate the remainder of the account to finance the couple's daughter's college education. In view of these facts, the husband's "extreme hardship" is not eased because he maintains a tiny retirement account which he intends to use for the education of his daughter.

It is undisputed that the husband lost his employment through no fault of his own. And, while the parties dispute whether the husband has made a good faith effort to find employment, it is undisputed that he does not have a college degree, and as a result of that, has limited employment opportunities in the highly competitive information technology field. The wife does not seriously contest this assertion. The husband provided the court with a three-page list of the positions that he has applied for, the approximate date in which he applied, and the location of the position. To date, the husband has not received an offer of employment, even though he has applied outside the Rochester/Monroe County area. Based on this extensive list, the Court is satisfied that the husband has established a prima facie case that he has diligently searched for employment sufficient, when combined with his other proof, to justify a finding of extreme hardship and to support a modification of his maintenance obligation.

Based on the totality of the husband's financial circumstances, as detailed above, there is no question that the husband's continued compliance with a maintenance [*6]obligation of $400.00 per month, or $125.00 per week, will cause him extreme hardship. The husband has no income aside from sporadic odd jobs and the financial contributions of his parents. He has minimal assets, which are far exceeded by his liabilities. Accordingly, the husband's motion to suspend his maintenance obligation is granted based on the above finding of extreme hardship and the wife's motion to deny the suspension of maintenance payments is denied.

However, the suspension of payments is temporary only. Cohen v. Seletsky, 142 AD2d 111,120 (2nd Dept. 1988). Maintenance payments will resume immediately, in an amount that the court deems proper, upon the husband obtaining employment or receiving other benefits from any sources, including significant gifts from his parents. The Court, as a condition of the suspension of the maintenance obligations, requires the husband to:

(a)immediately, upon securing full or part-time employment, provide the name, address and amount of salary to the wife and further provide that, until the further order of this Court, one-quarter of his net payment, each week, shall be forwarded directly to the wife;

(B)provide a monthly statement, under oath, to the wife of his income, including any gifts from any other person and include any pay stubs or contracts under which he is providing services and identify the name and addresses of any employer;

(c)provide a monthly list of employment applications, with the names and addresses of the putative employers, filed by the husband during that month or other steps taken to procure employment; and,

(d)provide a monthly list of all government sponsored benefits received by the husband.

All statements provided by the husband shall be under oath and mailed to the wife no later than the fifth day of each month. These conditions are reasonable and fair and consistent with the language of Domestic Relations Law §236 (B)(9)(b) which permits this Court to suspend the maintenance obligations "for such period of time and under such circumstances as the court shall determine." NY DOM. REL. LAW. §236 (B)(9)(b).

This case, perhaps mirrored by thousands of others in this economic climate, demonstrates the "extreme" consequences of unemployment for an aging workforce in the new millennia. Sadly, this Court can not stretch family resources beyond their dollar and cents limitation, when both parties are facing a new, but unwanted, life below the poverty line. The husband and wife share their economic plight: both suffer "extreme hardships" from the lack of income and resources. The Court acknowledges that one is no less "extreme" than the other. But, in response to this application, the husband is entitled to suspension of his maintenance obligation until he has income or resources to justify its reinstatement.

The foregoing constitutes the decision and order of the court.

Dated:August 22, 2012______________________________

Hon. Richard A. Dollinger, A.S.C.J. Footnotes

Footnote 1:Domestic Relations Law §236 (B)(9)(b), in pertinent party, directs as follows:

Where, after the effective date of this part, a separation agreement remains in force no modification of a prior order or decree incorporating the terms of said agreement shall be made as to maintenance without a showing of extreme hardship on either party, in which event the decree or order as modified shall supersede the terms of the prior agreement and decree for such period of time and under such circumstances as the court shall determine.

Footnote 2:It is undisputed that the husband, under the terms of the separation agreement, is solely responsible for the daughter's college expenses.

Footnote 3:While neither party presented proof of the federal poverty guidelines, this Court can take judicial notice of the published guidelines, which are issued pursuant to federal law. CPLR 4511; Kingsbrook Jewish Med. Ctr. v. Allstate Ins. Co., 61 AD3d 13 (2nd Dep't. 2009)(material derived from official government Web sites may be the subject of judicial notice).