Bill S4271-2013

Provides that no modification of child support orders shall reduce or annul child support arrears accrued prior to the making of an application

Provides that no modification of child support orders shall reduce or annul child support arrears accrued prior to the making of an application.

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  • Jan 8, 2014: REFERRED TO JUDICIARY
  • Mar 18, 2013: REFERRED TO JUDICIARY

Memo

BILL NUMBER:S4271

TITLE OF BILL: An act to amend the family court act, in relation to child support arrears accrued prior to applications to modify child support orders in supreme or family court

This is one in a series of measures being introduced at the request of the Chief Administrative judge upon the recommendation of her Family Court Advisory and Rules Committee.

In 1986, while enacting a comprehensive Governor's Program Bill entitled the "New York State Child Support Enforcement Act of 1986," the Legislature amended sections 451(1) and 460(1) of the Family Court Act to "[p]rohibit the cancellation or reduction of arrears for child support and allow reduction or cancellation of arrears for spousal support only upon a showing of "good cause." See Memorandum of Support, L. 1986, c. 892. This Memorandum explained that:

This provision would make sure respondents are not "rewarded" by reduction or forgiveness of arrears when they fail either to pay the required support or to seek modification of the order. Arrears for spousal support can be forgiven or reduced by a court in which case the facts and circumstances constituting such good cause shall be set forth in a written memorandum of decision.

The Governor's Memorandum of Approval stated that the legislation "precludes forgiveness of child support arrears to ensure that respondents are not financially rewarded either for failing to pay the order or to seek its modification." See 1986 N.Y. Legis. Ann., at 361. This legislation has led to a long line of cases holding that child support arrears accrued prior to an application for modification may not be vacated or reduced, in contrast to spousal maintenance (i.e., "other") arrears, which may be vacated or reduced upon a showing of good cause why the obligor had not moved for modification prior to the accrual of the arrears. See, e.g., Day. v. Tynan, 90 N.Y.2d 166 (1997); LiGreci v. LiGreci, 87 A.D.3d 722 (2d Dep't 2011); Moore v. Abban, 72 A.D.3d 970 (2d Dep't 2010); Rosana R. v. James 14., 68 A.D.3d 549 (1st Dept., 2009); Cole v. Irizarry, 307 A.D.2d 890 (1st Dep't 2003).

Neither the 1986 legislation nor subsequent amendments, however, made conforming changes to section 455 of the Family Court Act. With respect to cases in which a commitment of incarceration for a willful violation of child support has been suspended, therefore, a child support violator is now able to move pursuant to subdivisions two and five of Family Court Act § 455 for modification of child support obligations and may request a modification or cancellation of child support arrears upon a showing of "good cause for failure to make application for relief from the order directing payment prior to the accrual of such arrears." This has the anomalous effect of permitting support violators greater ability to avoid paying child support arrears than other child support obligors who move for modification of their obligations in accordance with Family Court Act § 451. In fact, Prof. Merril Sobie, in his Practice Commentary to Family Court Act 455, suggests that support obligors intent on avoiding arrears may even consent to a commitment on condition that it would be suspended,

which would then permit an application, upon good cause, for reduction or cancellation of arrears. Prof. Sobie observes:

Surprisingly, the subdivision permits a modification which "shall reduce or annul unpaid sums or installments accrued prior to the making of such application," when the respondent shows "good cause" for his failure to make application for arrears relief "prior to the accrual of such arrears." ...

The power to reduce or annul arrears appears to conflict directly with Section 451's requirement "... that the modification, set aside or vacatur shall not reduce or annul child support arrears accrued prior to the making of an application pursuant to this section." Indeed, the gospel has been that, perhaps with very limited exception, arrears are untouchable.... Is the apparent conflict an actual conflict, or does Section 455 carve out a limited exception for cases where the respondent has been committed? If the latter, avoiding the strict Section 451 rule is a relatively straightforward, albeit somewhat Machiavellian, process -- when the respondent is financially unable to comply with the original or a prior order and has hence accumulated arrears, commit pursuant to Section 454(3), and immediately grant Section 455 relief, to wit suspend the commitment and reduce or annul the arrears. The interrelationship and the possible conflicts between sections 451 and 455 may be resolved only through caselaw development.

Rather than await caselaw development, we are submitting this measure to harmonize subdivisions two and five of Family Court Act § 455 with the provisions of Family Court Act §§ 451(1) and 460(1). The measure makes clear that while support violators, whose commitments to jail have been suspended, may move for relief from future payments, they may not seek to reduce or annul child support arrears that have accrued prior to their applications for modification. Other arrears, that is, spousal maintenance arrears, continue to be subject to modification where good cause has been demonstrated for the failure to move for relief prior to their accrual. There is no basis to permit a willful violator of child support obligations, whose sentence to jail has been suspended, to stand in a better position to obtain relief from those obligations than other support obligors. Consistent with the rationale for the enactment of the amendment to sections 451(1) and 460(1) of the Family Court Act in chapter 892 of the Laws of 1986, therefore, we recommend enactment of a similar amendment to Family Court Act § 455.

This measure, which would have no fiscal impact upon the State, would take effect 90 days after becoming a law.

Legislative History:

None. New proposal.


Text

STATE OF NEW YORK ________________________________________________________________________ 4271 2013-2014 Regular Sessions IN SENATE March 18, 2013 ___________
Introduced by Sen. BONACIC -- (at request of the Office of Court Admin- istration) -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary AN ACT to amend the family court act, in relation to child support arrears accrued prior to applications to modify child support orders in supreme or family court THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivisions 2 and 5 of section 455 of the family court act, as amended by chapter 533 of the laws of 1999, are amended to read as follows: 2. Except as provided in article five-B of this act, any respondent against whom an order of commitment has been issued, if financially unable to comply with any lawful order issued under this article, upon such notice to such parties as the court may direct, may make applica- tion to the court for an order relieving him or her of FUTURE payments directed in such order and the commitment order. The court, upon the hearing on such application, if satisfied by competent proof that the respondent is financially unable to comply with such order may, upon a showing of good cause until further order of the court, modify such order and relieve the respondent from the commitment order. NO SUCH MODIFICATION SHALL REDUCE OR ANNUL CHILD SUPPORT ARREARS ACCRUED PRIOR TO THE MAKING OF AN APPLICATION PURSUANT TO THIS SECTION. No such modification shall reduce or annul unpaid sums or installments OF OTHER ARREARS accrued prior to the making of such application unless the defaulting party shows good cause for failure to make application for relief from the order directing payment prior to the accrual of such arrears. Such modification may increase the amount to be paid pursuant to a lawful order issued under this article nunc pro tunc based on newly discovered evidence.
5. Any respondent may assert his or her financial inability to comply with the directions contained in an order issued under this article or an order or judgment entered in a matrimonial action or in an action for the enforcement in this state of a judgment in a matrimonial action rendered in another state, as a defense in a proceeding instituted against him or her under subdivision one of section four hundred fifty- four of this article or under the judiciary law to punish him or her for failure to comply with such directions. If the court, upon the hearing of such contempt proceeding, is satisfied by competent proof that the respondent is financially unable to comply with such order or judgment, it may, in its discretion, until further order of the court, make an order modifying such order or judgment and denying the application to punish the respondent for contempt; provided, however, that if an order or [judgement] JUDGMENT for child support issued by another state is before the court solely for enforcement, the court may only modify the order in accordance with article five-B of this act. NO SUCH MODIFICA- TION SHALL REDUCE OR ANNUL CHILD SUPPORT ARREARS ACCRUED PRIOR TO THE MAKING OF AN APPLICATION PURSUANT TO THIS SECTION. No such modification shall reduce or annul UNPAID SUMS OR INSTALLMENTS OF OTHER arrears accrued prior to the making of such application for modification unless the defaulting party shows good cause for failure to make application for relief from the order or judgment directing such payment prior to the accrual of such arrears. Such modification may increase such support nunc pro tunc as of the date of the application based on newly discovered evidence. Any retroactive amount of support due shall be paid in one sum or periodic sums, as the court shall direct, taking into account any amount of temporary support which has been paid. S 2. This act shall take effect on the ninetieth day after it shall have become a law.

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