Although 2013 has barely begun,
there are clear signs that this will not be a good year for New York fathers
trying to lower their child support obligations. Last week, I discussed a recent decision
issued by New York's Fourth Department that rejected a father's request for downward modification of child support based on
his loss of employment. The Fourth
Department upheld the trial court's determination that reduction of support was
unwarranted because the father was responsible for his loss of employment and
there was insufficient evidence of the father's efforts to find a new job.
Now, the Second Department has
issued a strikingly similar decision. In Anderson
v. Anderson, 2013 NY Slip Op 0030 (2nd Dept. 2013), the
Appellate Division reversed the Suffolk County Supreme Court's decision
granting downward modification. The
Second Department's reversal is notable for at least two reasons. First, instances in which appellate courts
reverse trial court child support decisions are relatively uncommon. Second, the decision is yet further proof
that New York's appellate courts view downward modification motions with
At the outset of its decision in Anderson, the Second Department recites
the onerous burden that New York law imposes upon a child support obligor who
requests reduction of a support obligation that is the product of a settlement
agreement. He must prove "a substantial
and unanticipated change in circumstances" since the entry of the child support
decree. The Second Department also refers to the principal that an obligor's
self-inflicted financial difficulties are generally not a legitimate basis for
reduction of child support.
As is typical of appellate
decisions, the decision in Anderson
provides only an abbreviated version of the underlying facts.
According to the decision, the
obligor-father's modification motion was based on the closure of his business,
which, in turn, was the result of a federal criminal investigation.
The court also notes that the record was
devoid of any proof that the obligor-father had endeavored to find a new job.
Clearly, the obligor-father in Anderson came to court with some
unsavory baggage. The Second
Department's decision gives no hint as to what led the lower court to look
favorably upon the modification motion.
However, the decision makes it crystal clear that any motion seeking a
reduction of child support will be subjected to a high level of scrutiny in New
By: Marc A. Rapaport