Because of the poor economy and unemployment rising, the courts have been flooded with applications for downward modifications of child support. However, it is certainly not yours for the asking. Before proceeding to court you must gather sufficient evidence, if you are asking for a reduction, if you will have any chance to be successful.
In Matter of Kaplan v. Kaplan, 2013 NY Slip Op 0037 (2d Dept 2013) a husband’s request was denied because he failed to offer some competent, credible evidence of his inability to make the required payments. Of course what evidence will be sufficient will vary from case to case, short of one losing his job. Even then, such fact standing alone might still be insufficient unless the husband testified to all steps he took to find other work, what interviews he had that were unrewarded, or other efforts of following the want ads, the internet, or other sources searching for a job opportunity. This may seem like a harsh rule, but it is employed frequently by the court to deny the downward modification. One cannot stand idly by and do nothing positive to become re-employed.
The court in Kaplan explained that once the arrears have been established by competent proof, aprima facie showing has been made of a willful violation. Then the burden shifts to the non-paying spouse to prove it was not willful, and not due to any fault or neglect, and was caused by a bona fide inability to do so. In this case, the husband failed to do so, and the appellate court sustained the ruling of the lower court that determined that the father willfully violated an order directing child support. It is to be remembered that contempt is a drastic remedy that may result in imprisonment, so these cases cannot be treated lightly and proper presentation to overcome the presumption is critical.
This holding has been cited by many other courts for its decision to deny these applications, Make sure when you retain an attorney that you tell him with great detail what steps you have taken to make the payments, find new work, or even borrow money to avoid a default. Being forewarned is being forearmed.
