Simmons v Simmons

[*1] Simmons v Simmons 2004 NY Slip Op 51898(U) Decided on September 3, 2004 Supreme Court, Allegany County Euken, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 3, 2004
Supreme Court, Allegany County

Bonita Simmons, Plaintiff,

against

Arthur Simmons, Defendant.



28208

James E. Euken, J.

This is a motion by Mr. Simmons requesting a suspension of his maintenance and life insurance payments to plaintiff. The motion is supported by an affidavit of plaintiff sworn to April 22, 2004.

Defendant alleges in his affidavit sworn to April 22, 2004, that a Decision and Order was rendered by this Court on April 24, 2003. He alleges that on August 29, 2003, his employer terminated his employment due to downsizing and attached an unsworn copy of a letter dated September 2, 2003, addressed "To Whom it May Concern" that Arthur E. Simmons' employment was terminated due to economic reduction in force on August 29, 2003, signed by Robert H. Haffner, Manager, Human Resources, Dresser Rand.

Mr. Simmons alleges that his salary at the time of termination was $116,000.00 per year. He alleges that he received a severance check in the amount of $78,734.00 representing severance pay for thirty-five weeks commencing August 29, 2003, through April 30, 2004. Mr. Simmons further alleges that he is current with his $650.00 per week maintenance, but will have no income as of April 30, 2004. [*2]

Mr. Simmons alleges that his expenses and living expenses are essentially the same as the time of divorce except that he must pay his own medical/dental insurance in the sum of $132.00 per month. He also alleges that the divorce judgment requires him to maintain an $80,000.00 life insurance policy with plaintiff designated as the beneficiary. He alleges that the policy initially costs him $80.00 per month through Dresser Rand and is paid through June. At the return hearing, he testified this policy now costs $44.00 per month.

Mrs. Simmons (Ms. Terwilliger) did not file an affidavit in opposition. She raised the issue that Mr. Simmons' termination was not voluntary. Mr. Simmons testified to his efforts to obtain employment since his termination.

Domestic Relations Law §236 (B) (9) (b) authorizes the Court upon application of either party to annul or modify any prior judgment as to maintenance upon a substantial change in circumstance, including financial hardship. The Court must conduct a hearing to determine whether modification is warranted only where the allegations of the party seeking the modification present genuine issues of fact, (see, Mishrick v. Mishrick, [FN1] 251 AD2d 558; Young v. Young, 223 Ad2d 358). There is no right to a hearing absent a prima facie showing entitlement to a downward modification, (see, Lloyd v. Lloyd, 226 AD2d 816).

Here, Mr. Simmons swore that his job was terminated due to economic reduction and used his nine month severance pay to meet his maintenance obligation while continuing to search for employment. Mrs. Simmons did not dispute these facts and submitted nothing to the Court in opposition except her counsel's conclusory allegation with respect to his termination. However, the matter was adjourned for a hearing to determine whether a downward modification in the maintenance was required under Domestic Relations Law §236 (B) (9) (b).

The hearing was held on August 24, 2004. Both Mr. Simmons and Ms. Terwilliger testified. Mr. Simmons testified that he did not voluntarily quit his $116,000.00 job and the Court credits this testimony. Since his severance pay ended, he has been diligently searching for employment within a fifty miles of Wellsville, New York, where he was employed at Dresser Rand. He wants to stay within a two hour drive of Wellsville, New York, as he has lived in Allegany County his entire fifty-five years and wishes to continue to live in this county. He lives in Allegany County and his mother lives in Allegany, New York. He has been paying his maintenance and living expenses from his savings. He testified that he is looking for work in jobs paying over $25,000.00. He has consulted a former head hunter and other business associates in his search. He has utilized the internet and other sources for an average of 8 hours per week. He has made several written applications and other oral inquiries. His age and lack of a college degree have hurt his chances even though his accomplishments at Dresser Rand are well documented and listed prominently in his resume'. He lacks the specific experience required for most jobs.

Ms. Terwilliger wants the maintenance she was awarded in the judgment of divorce to continue. She testified that she re-financed the marital home she was awarded in the divorce judgment over a ten year period to coincide with her retirement. The unexpected termination of Mr. Simmons leaves her short in her living expenses and her mortgage payments. She testified [*3]that she refuses to use the substantial retirement assets awarded to her in the judgment of divorce: $116,000.00 share of 401 K; $40,000.00 share of mutual funds; $400.00 monthly share in three other plans. Mrs. Terwilliger does not desire to work a second job to supplement her job as a school bus driver for 20 weeks. Ms. Terwilliger desires that Mr. Simmons continue to pay $650.00 per week maintenance in view of his 37 years of marriage and raising the five children. She argues that Mr. Simmons should not limit his employment search to fifty miles from Wellsville, New York.

She argues that he did not make a good faith effort to obtain employment commensurate with his qualifications, (see, Davis v. Davis, 197 Ad2d 22).

Ms. Terwilliger contends that the continued payments would not cause extreme hardship on Mr. Simmons, (see, Barden v. Barden, 245 AD2d 695). However, Ms. Terwilliger relies on the wrong standard in urging the Court to require extreme financial hardship. The parties did not settle their differences with a separation agreement or stipulation that was incorporated and not merged into the divorce judgment, (see, Sheila C. V. Donald C., 5 AD2d 123, citing Pentus v. Pentus, 104 AD2d 866). A substantial change in circumstances is the appropriate standard here where the maintenance was set after a four day trial.

The Court finds that a downward modification in the maintenance is required under Domestic Relations Law §236 (B) (9) (b). The Court imputes a $30,000.00 income to Mr. Simmons based on the job offers he received (minimum wage in a cemetery and $18,000.00 at a motel) his age (born in 1948), and health (He has a heart problem), when weighed against his qualifications (He is experienced in heavy machine operation and manufacturing). The Court finds that Mr. Simmons has used sufficient efforts to obtain employment.

The Court finds no reason to cancel the requirement of life insurance previously imposed. The health of Mr. Simmons is still a concern of the Court. The concerns of Ms. Terwilliger being able to maintain her standard of living and living in the marital home are appreciated, but Mr. Simmons is facing the same economic hardships due to the loss of his employment and still must pay maintenance to his former wife. Mr. Simmons has moved out of his $20.00 per night motel and shares living expenses with his finance'. In setting the maintenance figure after trial, the Court did not consider Ms. Terwilliger's ability to maintain supplemental employment, (see, Kay v. Kay, 37 NY2d 632). The Court notes that the $400.00 monthly available in the three pension plans may permit her to keep her home without using the remaining retirement assets and that she may seek a job that pays her more or a second job to enhance the reduced maintenance amount from Mr. Simmons.

Accordingly, the Court modifies the maintenance payable to Ms. Terwilliger from $650.00 weekly to $200.00 weekly effective April 30, 2004. The obligation to maintain insurance shall remain in effect. Counsel for defendant shall submit an Order on notice within 30 days.

_____________________________

ENTERHon. James E. Euken [*4]

Acting Supreme Court Judge

Dated: August , 2004

Village of Belmont, New York Footnotes

Footnote 1: These issues involved Separation Agreements.