Matter of Smith v. McCarthy
143 A.D.3d 726
| N.Y. App. Div. | 2016Background
- Parents of a 4-year-old subject child: mother (child resides with her in NY) and father (lives in PA with four other children).
- Family Court previously ordered father to pay $1,406/month child support (Oct 21, 2013).
- Father filed (Mar 2015) for downward modification, alleging substantial change: loss of higher-paying aviation job and reduced income as a correctional officer.
- Evidence showed father was laid off from Talon Air (Mar 18, 2013), sought aviation work without success locally, briefly accepted then left a Delaware aviation job because relocation was infeasible and would impede custody efforts; later obtained lower‑paying correctional officer work and full custody of his four other children (June 2014).
- Support Magistrate denied modification as voluntary job departure; Family Court sustained that decision; the Appellate Division reversed and remitted for a recalculation of reduced support.
Issues
| Issue | Smith's Argument | McCarthy's Argument | Held |
|---|---|---|---|
| Whether a substantial change in circumstances occurred to warrant downward modification of child support | Smith argued loss of higher‑paying employment through no fault, diligent job search in his field, and new lower‑paying work — constituting a substantial change | McCarthy argued Smith voluntarily left the Delaware job and thus should not get downward modification | Held: Father established no‑fault job loss and diligent re‑employment efforts; leaving DE job did not bar relief under the circumstances, so modification warranted |
| Whether leaving the Delaware position was voluntary conduct barring relief | Smith contended he left because relocation was impossible and to preserve ability to pursue custody of his children | McCarthy contended the departure was voluntary and precluded reduction | Held: Court found the departure was justified (family/custody reasons) and did not preclude finding of diligent effort or no‑fault loss |
| Standard for determining amount of reduced support | Smith implied support should reflect earning capacity and current lower earnings | McCarthy argued current situation should not justify reduction given alleged voluntariness | Held: Amount must be determined based on assets and earning capacity; remitted for a new hearing to set the reduced amount |
| Burden of proof for downward modification | Smith argued he met burden by proving no‑fault termination and diligent job search | McCarthy argued evidence insufficient to show diligence or no‑fault | Held: Court found Smith met the burden with documentary evidence and testimony; modification appropriate |
Key Cases Cited
- Matter of Holmes v. Holmes, 140 A.D.3d 1066 (establishes substantial‑change and diligence standards for modification)
- Matter of Muselevichus v. Muselevichus, 40 A.D.3d 997 (support measured by assets and earning capacity, not solely current earnings)
- Matter of Rolko v. Intini, 128 A.D.3d 705 (parent must prove no‑fault termination and diligent search for comparable employment)
- Jelfo v. Jelfo, 81 A.D.3d 1255 (leaving out‑of‑area employment for family/custody reasons may not preclude modification)
- Matter of Morgan v. Spence, 139 A.D.3d 859 (loss of employment and lower new earnings can constitute substantial change)