ORDER UPON MOTION The parties are divorced and have two children in common, Reilin B. and Quinn B. (hereinafter collectively “subject children”). On January 31, 2020, the father, Steven B. (hereinafter “Father” or “Mr. B.”), filed a downward modification petition against the mother, Caroline B. (hereinafter “Mother” or “Ms. B.”). In his petition, he alleged that a substantial change in circumstances had occurred; to wit, that his income decreased because he was unable to secure comparable employment after his job with his former employer ended. Mr. B. sought to lower the child support obligation he was ordered to pay within the parties’ divorce documents. On June 4, 2020, Ms. B. filed a motion to dismiss Mr. B.’s petition, and for an award of counsel fees. On July 21, 2020, Mr. B. filed opposition papers. On August 24, 2020, Ms. B. filed reply papers. DISCUSSION MOTION TO DISMISS A party to a family court action may file a motion to dismiss for failure to state a cause of action pursuant to CPLR §3211(a)(7). See N.Y. FAM. CT. ACT §165(a) (McKinney’s 2020) (FCA adopts and applies CPLR where FCA is silent); see also See N.Y. C.P.L.R. §3211(a)(7) (McKinney’s 2020). In its analysis, the Court must construe the petition liberally to determine whether, within the pleading’s four corners, there exists a cognizable cause of action. See Harris v. Barbera, 96 A.D.3d 904, 905 (2d Dep’t 2012); see also Martin v. Liberty Mutual Ins. Co., 92 A.D.3d 729, 730 (2d Dep’t 2012); Ruffino v. New York City Transit Auth., 55 A.D.3d 817, 818 (2d Dep’t 2008). To that end, the Court must accept all alleged facts within the pleadings to be true. See Martin, 92 A.D.3d at 730; see also Young v. Campbell, 87 A.D.3d 692, 693 (2d Dep’t 2011). In other words, a motion to dismiss for failure to state a cause of action may be granted only where, accepting the petition’s alleged facts as true, the moving papers establish conclusively that there is no claim for relief stated within the petition. See N.Y. C.P.L.R. §3221(a)(7) (McKinney’s 2020); see also Noble v. Graham, 8 A.D.3d 641, 641 (2d Dep’t 2004); Fields v. Leeponis, 95 A.D.2d 822, 822 (2d Dep’t 1983). Moreover, when seeking a modification, a petitioner has the burden of proving that a substantial change in circumstances has occurred. See N.Y. FAM. CT. ACT §451 (McKinney’s 2020); see also Funaro v. Kudrick, 128 A.D.3d 695, 696 (2d Dep’t 2015); see also Radday v. McLoughlin, 106 A.D.3d 1015, 1015-16 (2d Dep’t 2013); see also Kasun v. Peluo, 82 A.D.3d 769, 771 (2d Dep’t 2011); Ish-Shalom v. Wittman, 81 A.D.3d 648, 648 (2d Dep’t 2011); Aranova v. Aranova, 77 A.D.3d 740, 40 (2d Dep’t 2010). Thus, in order to decide the instant motion to dismiss, the Court must determine whether Mr. B. sufficiently alleged that a substantial change in circumstances has occurred. Loss of employment, or decreased work hours coupled with a reduced salary, may represent a substantial change in circumstances so long as evidence is presented that a party’s job situation was caused through no fault of his or her own and that he or she made a good-faith effort to find new employment corresponding to his or her qualifications, education, and experience. See Riendeau v. Rindeau, 95 A.D.3d 891, 892 (2d Dep’t 2012); Matter of Uher v. Uher, 88 A.D.3d 732, 732 (2d Dep’t 2011); Matter of Awwad v. Awwad, 62 A.D.3d 695, 695 (2d Dep’t 2009); Muselevichus v. Muselevichus, 40 A.D.3d 997, 999 (2d Dep’t 2007). Unless a party has evidence of a diligent job search, that party’s ability to meet their burden will be severely limited. See e.g. Scotti v. Scotti, 82 A.D.3d 1107, 1107-108 (2d Dep’t 2011) (affirming family court’s determination that payor’s proof of diligent job search was nothing more than “unsubstantiated conclusory” statements); Ripa v. Ripa, 61 A.D.3d 766, 777-67 (2d Dep’t 2009) (finding family court properly denied payor’s downward modification petition where payor did not provide proof that he “used his best efforts to obtain employment commensurate with his qualifications and experience”). Mr. B. alleges that his income has decreased by 15 percent or more. He further alleges that when his “employment time ended at his former employer, he was unable to pursue other similar teaching jobs due to an indicated finding of child abuse.” Mr. B. maintains that his indicated finding of child abuse was ultimately adjudicated in his favor and his file was sealed. However, the petition fails to set forth whether Mr. B. lost his job because of such indicated finding of child abuse. The petition asserts that he has been unable to find employment commensurate with his education and experience, but does not state that he made diligent efforts to secure such employment. Although the petition alleges that Mr. B. is now employed as a vocational instructor, it does not state what higher earning, better position he had previously held. Rather than flesh out his allegations within his petition, Mr. B. does so in his opposition papers to Ms. B.’s motion to dismiss. In his opposition papers, Mr. B. states that he “officially resigned” from his teaching position because he was “forced to work in an adult setting, with a greatly reduced salary, due to…false allegations…which restricted [him] from working with children.” Moreover, he concedes that he had a verbal disagreement with his supervisor. Assuming arguendo that Mr. B.’s petition sufficiently alleged a cause of action, his position would be an uphill battle. Under the law, a parent who voluntarily quits his or her job is considered to have lost their employment through fault of their own. See e.g. Lindsay v. Lindsay-Lewis, 156 A.D.3d 642, 643 (2d Dep’t 2017) (where father left job to follow girlfriend to Florida, not entitled to downward modification); see also Vasquez v. Powell, 111 A.D.3d 754, 754 (2d Dep’t 2013) (finding mother failed to prove change in circumstances where she voluntarily left employment); Rosalind E.E. v. William E.E., 4 A.D.3d 629, 630 (3d Dep’t 2004) (upholding denial of downward modification where father left job to avoid being fired). Cf. Parmenter v. v. Nash, 166 A.D.3d 1475, 1476-477 (4th Dep’t 2018) (where parent quits job for compelling reason, such as need to live closer to child, requisite change in circumstances found to reexamine child support obligation). Most significantly, utilizing Mr. B.’s own timeline within his opposition papers, all of the issues he claims are substantial changes in circumstance were issues that took place, or were ongoing, during the divorce proceedings. Such is demonstrated through Mr. B.’s submission of the parties’ divorce documents. The Honorable Hope Schwartz Zimmerman’s (hereinafter “Judge Zimmerman”) decision,1 dated December 17, 2018 and the parties’ judgment, dated February 13, 2019, establish that Judge Zimmerman considered the issues alleged in Mr. B’s downward modification petition and articulated within Mr. B.’s opposition papers. Having already been considered during the divorce, those issues are not changes in circumstance. Further, the Court notes parenthetically that Mr. B.’s argument that he has now been “completely exonerated” of any false allegations of child abuse places him in a superior position towards finding employment of equal status to his prior position in the field of education. ADJUDGED, that accepting all alleged facts within the pleadings to be true, Mr. B. has failed to sufficiently set forth a cause of action; and it is therefore, ORDERED, that Ms. B.’s motion to dismiss is hereby granted in its entirety; and it is further, ORDERED, that Mr. B.’s petition is hereby dismissed. APPLICATION FOR COUNSEL FEES New York State Family Court Act §438(a) provides that attorneys fees may be awarded in support actions. See N.Y. FAM. CT. ACT §438 (McKinney’s 2020); see also Matter of Anna Y. v. Alexander S., 142 A.D.3d 864, 864 (2d Dep’t 2016). Such an award is left to the sound discretion of the court. See Matter of Felix v. Felix, 110 A.D.3d 805, 805 (2d Dep’t 2013). The factors to be considered when calculating an appropriate award include “‘the parties’ ability to pay, the merits of the parties’ positions, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of counsel’s performance and the fees under the circumstances.’” Felix, 110 A.D.3d at 805 (citing cases). The Court may also take into account whether one party has delayed the proceedings, or engaged in unnecessary litigation by failing to comply with discovery and other court orders. See Black v. Black, 140 A.D.3d 816, 816-17 (2d Dep’t 2016); see also Matter of Weiss v. Rosenthal, 135 A.D.3d 780, 781 (2d Dep’t 2016); Branche v. Holloway, 124 A.D.3d 553, 555 (1st Dep’t 2015). In light of the Court’s decision after motion, after having considered the pertinent factors, and within its sound discretion, the Court grants Ms. B.’s application for an award of counsel fees. Under the facts and circumstances of this case, and having reviewed Ms. Rosenblum’s billing statement, the Court finds reasonable compensation towards defending this action to be $2,500.00. ORDERED, that Ms. B.’s motion for counsel fees is hereby granted pursuant to New York State Family Court Act §438(a); and it is further, ORDERED, that counsel fees in the amount of $2,500.00 are hereby awarded to Ms. B. to be paid by Mr. B. This constitutes the decision, opinion, and order of the Court. Dated: August 26, 2020
