Bemoaning the lack of legislative direction in determining what constitutes an “extreme hardship,” a judge in Rochester has suspended maintenance payments in a matter where the near-destitute estranged husband claimed he could no longer afford to financially assist his disabled ex-wife.

“In 2012, we live in an era of ‘extreme sports’ and ‘extreme skiing,’” Acting Supreme Court Justice Richard Dollinger (See Profile) wrote in Platt v. Platt, 2012 NY Slip Op 51583. “We debate ‘extreme politics.’ Even the New York songster Billy Joel wondered—’darling I don’t know why I go to extremes.’”

But Dollinger, a former state senator, said that when the Legislature included the phrase “extreme hardship” as a measure for determining when a maintenance award could be modified, it “gave little indication of how ‘extreme’ the ‘hardship’ had to be to qualify for a modification.”

With no firm definition and case law suggesting that “what constitutes extreme hardship is a fact-specific inquiry that depends on the overall financial condition of the moving party,” Dollinger held in this matter that a temporary suspension of the marital obligation is warranted.

Platt v. Platt is a case where the husband is unemployed and subsisting at a level below the poverty line, and the wife is barely above that benchmark and living off disability benefits. Dollinger said they are both enduring extreme hardship.

“Sadly, this Court cannot stretch family resources beyond their dollar and cents limitation, when both parties are facing a new, but unwanted, life below the poverty line,” he wrote. “The husband and wife share their economic plight: both suffer ‘extreme hardships’ from the lack of income and resources.”

When Christine and William Platt entered into a separation agreement in 2011, the husband agreed to pay maintenance of $700 per month through February 2015, with the amount increasing to $1,000 per month after their daughter graduated from college.

After William Platt lost his job, Dollinger reduced the commitment to $400. When unemployment benefits expired in April, Platt moved to suspend his maintenance obligations under the “extreme hardship” provision in DRL §236.

Christine Platt opposed the motion, claiming that her former husband was doing occasional odd jobs, had not made a good faith effort to find work and that his parents were providing financial assistance.

William Platt countered that he has done only one home repair project, which earned him $180, and had sold off his power tools to pay for their daughter’s college tuition and other bills. He also provided a three-page list of jobs he has unsuccessfully sought.

Dollinger noted that as of May, William Platt had less than $1,000 in his checking account, less than $10 in his savings account, drives a seven-year-old car worth $5,498 and has $4,302 in a retirement account that he plans to use to cover his daughter’s college expenses. The judge said that to the extent Platt’s parents are helping him pay his rent and grocery expenses as an advance on any inheritance, he will not consider that as income.

“The wife invites the Court to use its considerable discretion to impute income to a party where the party receives money, goods, or services from a relative,” Dollinger wrote. “This Court declines to do so.”

The judge also declined to force William Platt to invade his 401(k) retirement account, as requested by his ex-wife, especially since “the husband attests that he intends to liquidate the remainder of the account to finance the couple’s daughter’s college education.”

The court suspended the maintenance payments temporarily, making clear those payments will immediately resume “in an amount that the court deems proper, upon the husband obtaining employment or receiving other benefits from any sources, including gifts from his parents.”

Steven Witkowicz of Handelman, Witkowicz & Levitsky in Rochester represents the wife. He was not immediately available for comment.

Robert Brennan of Trevett, Cristo, Salzer & Andolina in Rochester represents the husband.

“In my experience, there is not a lot of case law on just what constitutes extreme hardship,” Brennan said. “Although this case is fact-specific, I think it does provide some guidance to practitioners about what extreme hardship may be.”