For many persons who have filed to obtain child support in the courts, they know that it is very difficult to obtain a fair award if the parent from who support is being requested attempts to hide his or her income. Moreover, when an award is made, but not obeyed, additional collection problems are encountered. However, a recent appellate decision has made clear that courts will not tolerate attempts by such a parent to avoid their moral and legal obligation to support a child, by embarking on conduct that is used to obfuscate their true income and earning potential. Additionally this new precedent makes clear that an order of contempt will be readily used, which may imprison the recalcitrant spouse
In Rodriguez v. Mendoza, ___A.D.3rd___, a father sought a downward modification of his court imposed child support payments, alleging a loss of his job prevented him from complying with the court order. Despite such claim, the court held that a party seeking to obtain a downward modification of a support order because of loss of employment, must prove to the court that he or she has made a good faith effort to obtain other employment that is commensurate with his or her employment skills and capabilities Absent such proof, the court may ignore the plea that the loss of a job should be the basis to reduce an award. Even though the father was receiving social security disability payments, the court found that this fact by itself did not preclude the court to find that because of his skills and employment history, he could nonetheless find other employment.
In another case, the same court held that when a father defaulted in his obligation to pay child support, the burden shift to him to demonstrate to the court that he has a financial inability to comply with the court order. This was most important because when an order of contempt is being sought it is up to the father to prove the inability, and not the mother in our example. This will make it far easier to collect support because it will lead to the imprisonment of the father and will prevent future abuses from taking place. Now, a parent will know that a failure to pay support will be strictly enforced by the court based upon these new rules.