S4254-2013 Actions

• Mar 15, 2013: REFERRED TO JUDICIARY

S4254-2013 Memo

BILL NUMBER:S4254

TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to noncompliance with an income execution order

PURPOSE OR GENERAL IDEA OF BILL:  This bill provides for notice to be
served on the employer of a parent who is directed to make child
support payments by an order of support ("the debtor"). Notice shall
be served each time the employer fails to withhold the pre-determined
amount from the paycheck of the debtor. Following the receipt of each
notice, the employer will be charged with a penalty for failure to
withhold.

SUMMARY OF PROVISIONS:

Section One amends paragraph 1 of subdivision (g) of section 5241 of
the civil practice law and rules, as amended by chapter 398 of the
laws of 1997, adding subsection (B) which requires an employer or
income payer who has been served with an income execution shall be
served with a notice of failure to withhold income from the debtor.
This notice will include the date payment was due, the date that the
notice was served, whether it was a first or subsequent offense and
the penalties owed.

Section Two provides that the penalties imposed by that section are
imposed and aggregated each time notice is given to the employer and
the employer fails to withhold the income from the debtor.

Section Three is the effective date.

JUSTIFICATION:  Income executions are a helpful tool in collecting
delinquent child support payments. An income execution requires the
employer to withhold payments from the debtor's paycheck. When an
employer fails to comply with the income execution, they are subject
to a penalty of $500 for the first instance and $1,000 for each
subsequent instance.  The law as written fails to describe what
constitutes an instance.  Without a statutory definition of what an
"instance" means in this situation, courts could only hold the
employer responsible for the initial $500 penalty, even if their
noncompliance spanned several pay periods. This legislation
establishes guidelines for what shall constitute an instance by
providing that the employer will be served with a notice each time
they do not withhold deductions and that each time they are served
with such a notice and do not comply, this shall constitute an
instance for the purposes of assessing penalties.

LEGISLATIVE HISTORY: 2012 - A.7944

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE:  This act shall take effect immediately.

S4254-2013 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                         4254
 2013-2014 Regular Sessions
 I N  SENATE
 March 15, 2013
 
 Introduced  by  Sen.  BOYLE  -- read twice and ordered printed, and when
 printed to be committed to the Committee on Judiciary
 

AN ACT to amend the civil practice law and rules, in relation to noncom
 pliance with an income execution order
 THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM
 BLY, DO ENACT AS FOLLOWS:

 

Section 1. Paragraph 1 of subdivision (g) of section 5241 of the civil
 practice  law  and rules, as amended by chapter 398 of the laws of 1997,
 is amended to read as follows:

 (1)(A) An employer or income payor served  with  an  income  execution
 shall  commence  deductions  from  income  due  or thereafter due to the
 debtor no later than the first pay  period  that  occurs  fourteen  days
 after service of the execution, and shall remit payments to the creditor
 within  seven  business  days  of the date that the debtor is paid. Each
 payment remitted by an employer or income payor shall include, in  addi
 tion  to the identity and social security number of the debtor, the date
 and amount of each withholding of the debtor's income  included  in  the
 payment.  If the money due to the debtor consists of salary or wages and
 his or her employment is terminated by resignation or dismissal  at  any
 time  after service of the execution, the levy shall thereafter be inef
 fective, and the execution shall be returned, unless the debtor is rein
 stated or re-employed within ninety  days  after  such  termination.  An
 employer  must  notify  the  issuer  promptly when the debtor terminates
 employment and provide the debtor's last address and name and address of
 the new employer, if known. Where the income  is  compensation  paid  or
 payable  to  the  debtor  for  personal  services,  the  amount  of  the
 deductions to be withheld shall not exceed the following:

 (i) Where a debtor is currently supporting a spouse or dependent child
 other than the creditor, the amount of the  deductions  to  be  withheld
 shall  not  exceed fifty percent of the earnings of the debtor remaining
 after the deduction therefrom of any amounts required by law to be with
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD06561-01-3
 
       S. 4254                             2
 held ("disposable earnings"), except that if any part of such  deduction
 is  to  be  applied to the reduction of arrears which shall have accrued
 more than twelve weeks prior to the beginning of the week for which such
 earnings  are  payable,  the  amount  of such deduction shall not exceed
 fifty-five percent of disposable earnings.
 (ii) Where a debtor is not currently supporting a spouse or  dependent
 child  other than the creditor, the amount of the deductions to be with
 held shall not exceed sixty  percent  of  the  earnings  of  the  debtor
 remaining  after  the deduction therefrom of any amounts required by law
 to be withheld ("disposable earnings"), except that if any part of  such
 deduction  is to be applied to the reduction of arrears which shall have
 accrued more than twelve weeks prior to the beginning of  the  week  for
 which  such earnings are payable, the amount of such deduction shall not
 exceed sixty-five percent of disposable earnings.
 (B) AN EMPLOYER OR INCOME PAYOR SERVED WITH AN INCOME EXECUTION  SHALL
 BE  SERVED  A  NOTICE  BY  THE  CREDITOR  FOR  EACH  FAILURE TO WITHHOLD
 DEDUCTIONS FROM INCOME DUE OR THEREAFTER DUE TO THE DEBTOR. SUCH  NOTICE
 SHALL  STATE  THE  DATE  PAYMENT  WAS DUE UNDER SUBPARAGRAPH (A) OF THIS
 PARAGRAPH, THE DATE ON WHICH SUCH NOTICE WAS SERVED, WHETHER SUCH NOTICE
 CONCERNS A FIRST, OR SUBSEQUENT OFFENSE AND THE MONIES OWED IN  PENALTY.
 IN   CALCULATING   THE  PENALTY  UNDER  THIS  SUBPARAGRAPH  THE  SUPPORT
 COLLECTION UNIT SHALL USE THE PENALTIES DESCRIBED IN SUBPARAGRAPH (D) OF
 PARAGRAPH TWO OF THIS SUBDIVISION AND SHALL AGGREGATE THE PENALTIES  FOR
 EACH  INSTANCE  OF FAILURE TO WITHHOLD DEDUCTIONS OR TO REMIT PAYMENT TO
 THE UNIT.
 

S 2. Subparagraph (D) of paragraph 2 of  subdivision  (g)  of  section
 5241  of  the civil practice and rules, as amended by chapter 335 of the
 laws of 2006, is amended to read as follows:

 (D) In addition to the remedies herein provided and as may  be  other
 wise  authorized  by  law,  upon  a finding by the family court that the
 employer or income  payor  failed  to  deduct  or  remit  deductions  as
 directed  in the income execution, the court shall issue to the employer
 or income payor an order directing compliance and may direct the payment
 of a civil penalty not to exceed five  hundred  dollars  for  the  first
 instance and one thousand dollars per instance for the second and subse
 quent  instances of employer or income payor noncompliance. UPON A FIND
 ING THAT THE CREDITOR HAS COMPLIED WITH THE NOTICE PROVISIONS OF SUBPAR
 AGRAPH (B) OF PARAGRAPH ONE OF THIS SUBDIVISION, THE COURT SHALL  IMPOSE
 A  PENALTY AS DESCRIBED FOR EACH FAILURE TO WITHHOLD DEDUCTIONS OR REMIT
 PAYMENT TO THE UNIT; PROVIDED THAT SUCH PENALTIES SHALL  NOT  ACCRUE  TO
 THE  GOVERNMENT  OF  THE UNITED STATES OR THE GOVERNMENT OF THE STATE OF
 NEW YORK OR ITS POLITICAL SUBDIVISIONS. The penalty shall be paid to the
 creditor and may be enforced in the same manner as a civil  judgment  or
 in any other manner permitted by law.
 

S 3. This act shall take effect immediately.

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