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Modification of Child Support – When is it Possible?By Frances A. DeThomas, Esq.

As a matrimonial and family law practitioner, new and existing clients frequently ask whether or not a prior child support agreement or order can be modified. Of course, the payor spouse wants/needs to pay less and the recipient spouse wants/needs to receive more. A father paying support may lose his job and seek a downward modification. A mother receiving support may seek an upward modification because the children’s needs are no longer being met due to the rising cost of living. Perhaps one of the parties becomes disabled and can no longer make support payments.

Will any of these or similar claims meet with success? The answer can depend, in large part, on whether the child support obligation originated in a court order or by virtue of an agreement between the parties which was incorporated but not merged into a judgment of divorce, since there are differing burdens of proof, depending upon how the child support obligation was generated.

Part I: Modification of an Order, Decree or Merged Agreement

Generally speaking, those orders that are decretal in nature or based on agreements merged in the order can be modified upon a showing of a substantial change of circumstances, including financial hardship. DRL 236(B)(9)(b)(1). For additional bases to modify an order, decree or unmerged agreement, see Part III of this article. Among the factors to be considered in determining whether there has been a substantial change in circumstances warranting an upward modification of support are the increased needs of the children, the increased cost of living insofar as it results in greater expenses for the children, a loss of income or assets by a parent, and the current and prior lifestyles of the children. Matter of O’Connor-Gang v. Munoz, 143 A.D.3d 825 (2d Dep’t 2016); Matter of Diaz v. Smatkitboriharn, 158 A.D.3d 760 (2d Dep’t 2018), citing Shedd v. Shedd, 277 A.D.2d 917 (4th Dep’t 2000).

In order to prevail on a claim for an upward modification on a substantial change in circumstances basis, it is important to set forth specific increased expenses as well as the fact that the obligor’s income has significantly increased, so that he or she can afford to pay the needed increase. Matter of Baumgardner v. Baumgardner, 126 A.D.3d 895, 896-97 (2d Dep’t 2015). It is simply not enough to allege that a modification of a child support order is necessary because one party’s income has increased. Matter of Thomas v. Fosmire, 138 A.D.3d 1007, 1008 (2d Dep’t 2016). Nor is it sufficient to generally allege that the children’s needs have increased because they have matured or because of the cost of inflation. Love v. Love, 303 A.D.2d 756 (2d Dep’t 2003). The petitioner must prove by a preponderance of the evidence, competent and specific evidence, that the child’s needs are not being met.

The proponent of a downward modification of an order that is decretal in nature must show a substantial change in circumstances that is not self-imposed. A loss of employment can constitute a change of circumstances warranting a downward modification where it can be shown that the obligor lost his job through no fault of his own and diligently sought re-employment in his field. Matter of Rudy v. Rudy, 167 A.D.3d 751 (2d Dep’t 2018). However, an obligor will not meet his burden warranting vacatur of his support obligations where he does not keep up his efforts to find a position commensurate with his qualifications and experience. Matter of Addimondo v. Huerta, 147 A.D.3d 750, 752 (2d Dep’t 2017). Where this is the case, the court will impute income to the obligor based upon his prior earnings history. Baffi v. Baffi, 24 A.D.3d 578 (2d Dep’t 2005). Similarly, a downward modification will not be granted where the obligor has decided to invest his assets in a new business venture, which serves to alter his circumstances. Matter of Addimondo v. Huerta, 147 A.D.3d at 752. The court will view such an attempt as a self-imposed hardship and while mindful that the parent is entitled to attempt to improve his vocation, the children will not be expected to subsidize such a decision through a reduction in the child support award. Matter of Bustamonte v. Donawa, 119 A.D.3d 559, 560 (2d Dep’t 2014), citing Doyle v. Doyle, 230 A.D.2d 795 (2d Dep’t 1996).

Part II: Modification of an Unmerged Agreement

In Part I of this Article, I discussed the basic law regarding the burden of proof required to obtain a modification of a child support obligation that is set forth in a court order or a merged agreement. In Part II of this Article, I will briefly discuss the different burden of proof that applies when seeking to modify a child support obligation that is set forth in a settlement agreement that is incorporated, but not merged into a judgment of divorce.

Where a separation agreement or stipulation of settlement is incorporated in and survives a judgment of divorce, and survives as a separate agreement, and there is an application solely to readjust the respective child support obligations of the parties, the court will not modify the child support obligations therein, unless it can be established that the agreement or stipulation was not fair and equitable when entered into, or unless an unanticipated or unreasonable change in circumstances has occurred, resulting in a concomitant showing of need. Boden v. Boden, 42 N.Y.2d 210 (1977). This makes sense, since the purpose of entering into separation agreements is to achieve finality, and absent fraud, duress, overreaching or some unforeseen or unreasonable change in circumstances, such an agreement between the parties should not be set aside.

However, where there is an unmerged agreement and the custodial parent demonstrates that the basic needs of the children are not being met, the court may order an increase in child support upon a showing of a change in circumstances. Provenzano v. Provenzano, 151 A.D.3d 1800, 1801 (4th Dep’t 2017). When this is the case, several factors enter into the determination, including the “increased needs of the children due to special circumstances or to the additional activities of growing children, the increased cost of living insofar as it results in greater expenses for the children, a loss of income or assets by a parent or substantial improvement in the financial condition of a parent, and the current and prior lifestyles of the children. Consideration of such factors may lead to the determination that the children’s best interests require an upward modification of the child support award.” Brescia v. Fitts, 56 N.Y.2d 132 (1982). This test was restated in Michaels v. Michaels, 56 N.Y.2d 924 (1982), where the Court of Appeals stated “It is sufficient in such a case that a change in circumstances has occurred warranting an increase in the best interests of the child.”

In such cases where the child’s right to receive adequate support is asserted, the court has understandably relaxed the burden for obtaining an upward modification of child support. In Neil v. Neil, 232 A.D.2d 771 (3d Dep’t 1996), the parties entered into an agreement subsequently incorporated, but not merged, into a judgment of divorce. The agreement provided for the father, the non-custodial parent, to pay weekly child support in the amount of $50 for one child. Seven years later, the mother petitioned the court for an upward modification, alleging that the mother’s income, when combined with the support payments by the father, was insufficient to meet her reasonable living expenses and, subsequently, the child’s basic needs were not being met. Id. at 771. The Second Department agreed with the mother’s argument and stated that “where the evidence before the court demonstrates that the needs of the child are not being adequately met, it is not necessary to demonstrate an unanticipated and unreasonable change in circumstances to justify an increase.” Id. at 772; citing Matter of Michaels v. Michaels, 56 N.Y.2d 924, 926 (1982); Matter of Brescia v. Fitts, 56 N.Y.2d 132, 138-140 (1982); Matter of Dinkins v. Mabry, 194 A.D.2d 787, 788 (2d Dep’t 1993). The Second Department ultimately affirmed the ruling of the Hearing Examiner that an upward modification of child support to $98 per week was necessary to meet the basic needs of the child. Neil, 232 A.D.2d at 772. Similarly, in Pettey v. Piko, 215 A.D.2d 485 (2d Dep’t 1995), an increase in child support was warranted where the mother demonstrated at the hearing that the prior child support order was insufficient to meet the children’s present needs and the father had the ability to pay the increased support.

It is also possible to obtain an upward modification of a child support obligation set forth in an unmerged agreement where there is an unanticipated and unreasonable change in circumstances. In Schiavone v. Schiavone, 208 A.D.2d 543 (2d Dep’t 1994), the mother demonstrated at the hearing that an unanticipated and unreasonable change in circumstances had occurred in that her yearly income had decreased by approximately one third (presumably through no fault of her own), and thus, the non-custodial father’s child support obligation was increased (presumably based upon his current income). On the flip side, an unanticipated and unreasonable change in circumstances warranting a downward modification of child support occurs where the non-custodial father loses his job through no fault of his own and diligently seeks re-employment in his field. Matter of Rudy v. Rudy, 167 A.D.3d 751 (2d Dep’t 2018).

Finally, it is important to note that on any application for a post judgment modification of child support, it is critical that there is an affidavit and some evidentiary material setting forth a sufficient basis to establish a prima facie case for modifying the child support order. No hearing will be required unless the affidavit and other evidentiary material present a genuine issue of fact. FCA Sec. 451. In Rizzo v. Spear, 152 A.D.3d 774 (2d Dep’t 2018), the father claimed his loss of employment constituted a change in circumstances warranting a downward modification of his child support obligation. The father set forth only conclusory allegations in his moving affidavit that he diligently searched for a comparable job, and thus, the court properly denied his motion without conducting an evidentiary hearing.

Part III: Statutory Provisions Affecting Child Support Modifications in Orders, Decrees, and Merged and Unmerged Agreements

As of October 13, 2010, in addition to modifying a child support order, decree, or merged agreement based upon a showing of a substantial change in circumstances, a court may now modify a child support order, decree, or provisions of a merged agreement where either three (3) years have passed since the child support order was last entered, modified, or adjusted; or either parents’ income changed by at least fifteen (15%) percent since the existing child support order was entered, modified, or adjusted. (DRL§ 236(B)(9)(b)(2)(ii)).

This new legislation is also applicable to child support obligations set forth in an agreement or stipulation that was incorporated, but not merged into the final judgment of divorce. (DRL§ 236(B)(9)(b)(2)(i) and (ii)(A) and (B)), unless the parties expressly waived the application of the child support modification legislation by including an opt-out provision in their written stipulation or agreement. Despite the parties’ intention to create their own child support obligations, a court may modify their child support obligations where either three (3) years have passed since the child support order was last entered, modified, or adjusted; or either parents’ income changed by at least fifteen (15%) percent since the existing child support order was entered, modified, or adjusted, unless they have explicitly waived application of the modification legislation in their support agreement. (DRL§ 236(B)(9)(b)(2)(ii)(A) and (B)).

Whether child support is court ordered or pursuant to an agreement or stipulation, and the parties have not waived the modification provisions of the statute, in the event that one of the parents is seeking a modification of his/her child support obligation based upon an income reduction of fifteen (15%) percent or more, the reduction in income will only be considered a proper basis for modification if the reduction was involuntary and the party seeking the reduction made “diligent attempts to secure employment commensurate with his/her education, ability, and experience.” (DRL § 236(B)(9)(b)(2)(ii)(B)).

It is important to note that pursuant to this legislation (DRL § 236(B)(9)(b)(2)(iii)), in the event any child support arrears accrued prior to the date of application to modify or annual a prior order of child support, whether such obligation was ordered by the court or agreed upon in a stipulation or agreement, the child support arrears will not be reduced or annulled by the outcome of the modification application. (Margaret A. v. Shawn B., 921 N.Y.S.2d 476 (Westchester Cty. Sup. Ct. 2011)).

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