How Far Back Can Child Support Be Recalculated?

Ordinarily, proceedings to modify child support or related expenses are retroactive to the date of filing of the new application or petition. However, proceedings that argue that the court order or settlement agreement didn’t comply with the relevant requirements of the Child Support Standards Act are treated differently. Where the court finds, sometimes many years later, that an order, or an agreement, is non-compliant, it has to recalculate child support and related obligations retroactive to the original date of the order or agreement. Non-compliance can happen for a variety of reasons such as an invalid opt-out provisions or a failure to include proper acknowledgment clause.

In Martelloni v. Martelloni, the Appellate Division, Second Department, held that the trial court erred in failing to grant wife’s motion for recalculation of unreimbursed medical and childcare costs retroactive to parties’ stipulation of settlement date of January 12, 2012. Parties’ stipulation of settlement survived but was not merged into divorce judgment.

In 2014 wife commenced plenary action to vacate and recalculate medical and childcare expenses retroactive to the date of stipulation. In 2015 court consolidated wife’s plenary action with another post judgment matrimonial proceeding and determined stipulation provision pertaining to unreimbursed medical was invalid as it deviated from CSSA without an acknowledgment, and dismissed wife’s plenary action due to consolidation. Wife then filed motion to compel husband to pay pro-rata share of unreimbursed medical and childcare, retroactive to 2012 stipulation date.

The Appellate Division held that the trial court improperly determined reimbursement of medical and childcare costs were retroactive only to the date of filing of the motion. It held that since wife properly commenced plenary action to vacate and recalculate stipulation provision which action was consolidated, court should have granted recalculation of arears owed retroactive to date of parties’ stipulation of January 2012.

This determination is likely to create an unexpected financial obligation for the now ex-husband. The amount of it is likely to be significant since it had merited an appeal. In my practice as a child support attorney, I see a surprisingly high number of orders and agreements that for one reason or another do not comply with the Child Support Standards Act. Under appropriate circumstances, those situations represent an opportunity to undo a bad agreement or wrong court decision.

Automatic Orders During Divorce Can Only Be Enforced Prior to the Entry of Judgment

WHAT ARE “AUTOMATIC ORDERS”?

When a divorce action is filed and defendant is served, among other documents that person is served with a ‘Notice of Automatic Orders.’ Those orders are designed to keep the status quo with respect to certain issues, without a judge having to act.

WHAT ISSUES DO THESE AUTOMATIC ORDERS COVER?

Automatic Orders prohibit the sale or transfer of real or personal property without the consent of the other party or an order of the court. This doesn’t apply to spending related to the normal course of business, usual household expenses, or reasonable attorney fees. Automatic Orders prohibit the sale or transfer of retirement accounts without the consent of your spouse or a court order. Automatic Orders prohibit further borrowing against any home equity loan, taking out new loans on any assets, or using credit cards for anything outside the normal course of business, usual household expenses, or reasonable attorney fees. Automatic Orders prohibit you from dropping your children or spouse from any medical insurance policy. You are also prohibited from dropping the policy altogether – health insurance must remain in effect. Automatic Orders prohibit changing the beneficiary of any life insurance policy and require that the parties keep all life, auto, homeowners, and renters insurance in place. The idea behind Automatic Orders is that everything stays the same during the divorce to avoid any sudden changes. If you do need to make big changes because of unusual circumstances, there are ways to go about it.

A RESTRAINING ORDER PREVENTS A PARTY IN A DIVORCE CASE FROM SELLING OR TRANSFERRING PROPERTY.

The reason behind a restraining order is that some spouses try to hide or sell off assets of the marriage. In New York, parties no longer need to apply directly to a judge for a restraining order, as the retraining order and other orders are now automatic. These “Automatic Orders” go into effect when a divorce case is filed in New York. There is no requirement that a Supreme Court Justice sign the Automatic Orders before they become effective. The automatic Orders are imposed on the plaintiff when the Summons is filed with the County Clerk’s office. The Automatic Orders are imposed on the defendant when the defendant is served with the Summons with Notice, and a Notice of the Automatic Orders.

WHAT HAPPENS IF THE AUTOMATIC ORDERS ARE VIOLATED?

In a recent case, decided by the Second Department of the Appellate Division, Spencer v. Spencer, the court held that the remedy of civil contempt of court for a violation of the Automatic Orders is no longer available once the divorce judgment is signed. Thus, any contempt proceeding must be completed before the divorce judgment is signed or there is no longer a remedy for the violation it is waived.

The facts in Spencer are straightforward. Following the entry of her November, 2015 divorce judgment, the wife discovered that while the divorce action was pending, her husband sold a warehouse in Brooklyn, without the knowledge or consent of the wife or the court, netting $300,000.00.

Pursuant to Court Rule 22 N.Y.C.R.R. §202.16-a, the automatic orders are binding upon a plaintiff upon commencement of the matrimonial action and upon a defendant upon service of the summons or summons and complaint (see Domestic Relations Law §236[B][2][b]). Automatic Orders seek to preserve the status quo while the action is pending, by prohibiting the transfer or encumbrance of real and personal property and retirement funds, the accumulation of unreasonable debt, and changes in beneficiaries on existing health and life insurance policies.

The wife, then, brought a motion to hold the husband in civil contempt (Judiciary Law §753). After a hearing, the trial court granted that motion and directed that unless the defendant purged the contempt by immediately paying $150,000.00 to the wife, the husband would be incarcerated every weekend for a period of six months. The husband appealed.

The Second Department reversed. In doing so, it stated the elements needed to be proven by clear and convincing evidence to support a finding of civil contempt are:

      • that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect;
      • that the party against whom contempt is sought disobeyed the order;
      • that the party who disobeyed the order had knowledge of its terms; and
      • that the movant was prejudiced by the offending.

The husband argued that the automatic orders do not constitute “unequivocal mandates” of the court, but are merely administrative rules. The Second Department affirmed that part of trial court’s decision that the automatic orders could form the basis for a finding of contempt. The appellate court found the husband’s argument contrary to the express language of 22 N.Y.C.R.R. §202.16-a, as well as being against public policy.

However, the Second Department held that where a judgment of divorce has already been entered, the remedy of civil contempt is not available for a violation of the automatic orders.

In the context of a matrimonial action, the Court of Appeals has recognized that a final judgment of divorce settles the parties’ rights pertaining not only to those issues that were actually litigated, but also to those that could have been litigated.
The automatic orders are temporary and exist only “in full force and effect” during the pendency of the action until “terminated, modified or amended by further order of the court or upon written agreement between the parties” (22 NYCRR 202.16-a[b]). Upon entry of a judgment of divorce, the purpose of the automatic orders ends, and, when the life of the automatic orders thus expires, the statutory remedies for their enforcement fall at the same time.

In the context of a matrimonial action, the Court of Appeals has recognized that a final judgment of divorce settles the parties’ rights pertaining not only to those issues that were actually litigated, but also to those that could have been litigated. The automatic orders are temporary and exist only “in full force and effect” during the pendency of the action until “terminated, modified or amended by further order of the court or upon written agreement between the parties” (22 NYCRR 202.16-a[b]). Upon entry of a judgment of divorce, the purpose of the automatic orders ends, and, when the life of the automatic orders thus expires, the statutory remedies for their enforcement fall at the same time.

Public policy concerns recognizing the finality of judgments are additional reasons to find that, after a judgment of divorce is entered, a party is not entitled to pursue a motion for contempt of court for a late-discovered violation of the automatic orders even though such violation occurred during the pendency of the divorce action. Preventing vexatious litigation and promoting judicial economy, as well as the goal of avoiding inconsistent rulings where a judgment of divorce might actually conflict with the finding in a hearing on a violation of the automatic orders, also dictate the conclusion that a remedy of civil contempt is not available for a violation of the automatic orders once a judgment of divorce is entered.

While reversing the trial court, the Second Department noted that the unavailability of civil contempt as a remedy to enforce the terms of the automatic orders after the entry of the judgment of divorce did not render the wife without available remedies. It listed a variety of approaches, including a vacatur of the judgment of divorce based on newly discovered evidence, a civil contempt motion for a violation of the judgment of divorce, a proceeding to enforce the terms of the judgment of divorce or to obtain an order directing the payment of 50% of the value of the property which was awarded to the plaintiff in the judgment of divorce, or amendment of the judgment of divorce are all remedies that the wife could have sought.

Thus, it is absolutely critical to enforce a party’s rights for violation of the Automatic Orders as soon as the violation is discovered by filing a contempt motion unless circumstances mandate a different approach.

Obtaining Original (Pre-Adoption) Birth Certificate for Adoptees

On January 15, 2020, New York’s law, allowing adoptees to receive a certified copy of their original, or pre-adoption, birth certificate when they turn 18-years-old, went into effect. The new law gives the right to all adult New York adoptees to obtain information about their birth and biological parents. Thus, adult adoptees are able to obtain information about their origins, family histories and medical backgrounds .

Starting on January 15, 2020, the New York State Department of Health began accepting requests from adoptees 18-years-old and older born in New York State, outside of New York City, who want to receive their original birth certificate. If the adoptee is deceased, direct line descendants, such as a child, grandchild or great-grandchild of the adoptee, may request a copy of the adoptee’s birth certificate. Also, a lawful representative of an adoptee or a lawful representative of a deceased adopted person’s direct line descendant may also apply for an original birth certificate.

The Department of Health has birth records for all of New York State except New York City. Adoptees born in New York City must apply through the New York City Department of Health and Mental Hygiene. Applications for the birth certificate can be made online and are likely to result in faster issuance of the birth certificate. Paper applications will also be accepted by mail and in person. All certificates will be issued via regular mail; no certificates will be issued in person or via email.

Previously, the original birth certificates were sealed pursuant to the provisions of the Public Health Law and Domestic Relations Law. They could not be released except by the order of the court without meeting a high level of proof.

Collection of Child Support Arrears

One issue that often comes up when someone owes child support or spousal support arrears is how those arrears are to be collected. One of the more common methods is through the use of income execution for support enforcement under CPLR §5241.

CPLR §5241 allows the attorney for the party to whom to child support or spousal support are owed to obtain up to 65 percent of the debtor’s disposable earnings to pay both past due and current amounts of child support, alimony or maintenance, plus provision of health insurance for dependents. CPLR §5241(h) notes that a levy on this type of execution has priority “over any other assignment, levy or process.”

Similar to the income execution for support enforcement is the income deduction order for support enforcement authorized by CPLR §5242. Such an order is issued by the court at the same time it issues an order of support. It allows deduction of the same percentages from debtor’s income payable to the creditor and the same number-one priority over all other assignments, levies or process against the income of the debtor.

If you are a debtor, a deduction of 65% of disposable earnings is likely to be unmanageable.  So what can be done? The answer is contained in CPLR §5240, which allows the court to modify terms of garnishment.  In Fishler v. Fishler, 154 A.D.3d 917 (2nd Dep’t 2017), the debtor was served with an execution for the maximum percentage permitted, 65% of disposable earnings.  The Appellate Division, having reviewed financial circumstances of the debtor, reduced percentage collected to 40% of disposable wages.  In making its decision, the court was seeking to strike “a fair balance between the needs of a creditor holding a valid money judgment and the needs of a debtor managing competing financial obligations”.

One additional issue is worth mentioning. If child support or spousal support are being collected by New York State Child Support Enforcement Unit, those arrears will be collected by increasing the amount garnished by 50% of the current payment due.  Debtor paying such arrears may apply for a lower payment amount on arrears, the so-called administrative adjustment, but such modification is discretionary with CSEU and requires an application and proof of financial circumstances.

Expanding Definition of What It Means to Be a Parent

The New York State Court of Appeals ruled last week in Brooke S.B. v Elizabeth A.C.C., 2016 N.Y. Slip. Op. 05903, that a loving caretaker who is not related to, or the adoptive guardian of, a child could still be permitted to ask for custody and visitation rights.

The ruling came from a litigation between a couple, known in family court papers only as Brooke S.B. and Elizabeth A. C.C. In 2008, Elizabeth became pregnant with the couple’s child through artificial insemination. Though Brooke had no legal or biological ties to the child, a boy, she maintained a close relationship with him for years, cutting his umbilical cord at birth, giving him her last name and raising him jointly with Elizabeth. In 2013, after their relationship ended, Elizabeth tried to cut off Brooke’s contact with the boy. Brooke sued for custody and visitation privileges, but was turned down by a lower court, which found that legal precedent pursuant to Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), did not define a non-adoptive, non-biological caretaker as a parent.

In its ruling, the Court of Appeals overturned Alison D., stating that “the definition of ‘parent’ established by this court 25 years ago in Alison D. has become unworkable when applied to increasingly varied familial relationships.” It further held that “where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody.”

While Brooke S.B. seems to be applicable primarily to same sex couples, it is easy to see that the same type of argument may be applicable to heterosexual couples in situations where one partner is artificially inseminated.  The Court of Appeals declined to state what the proper test should be in cases where no preconception agreement can be shown to have existed between nonbiological couple. As far as the proof of the parties’ intent, the courts are likely to look at the parties’ participation such activities as birthing classes, partners’ inclusion on birth notices and other traditional indications of the existence of a pre-conception agreement between a couple.

Parent Who Is Prevented From Seeing Child By Other Spouse Is Not Obligated To Pay Child Support

I have previously written about situations where a child becomes constructively emancipated as a result of the child’s refusal to have contact with the parent.  What happens in situations where a parent is prevented from seeing the child by the other parent? In Coull v. Rottman, 131 A.D.3d 964 (2nd Dept. 2015) the Appellate Division, Second Department suspended father’s obligation to make child support payments.

The father last visited his son in February 2010. For the next several months, he said he would go to the exchange location on visitation days, but often neither the mother nor his son would be there. In one instance, both the mother and the child appeared, but the mother said the boy would not leave the car.

The court also found that the mother assumed an inappropriately hostile stance toward the father and witnesses who testified in his favor.  She further stated many times that she would never allow the father to see his child and would do “whatever it takes” to keep the boy away from him.

Given the circumstances, the court concluded that the father’s obligation to pay child support should be suspended.  While parents have a duty to continually support their children until they are 21 years old, where the noncustodial parent establishes that his or her right of reasonable access to the child has been unjustifiably frustrated by the custodial parent, child support payments may be suspended.

Further, the relationship between the father and the child had deteriorated and while the boy had participated in therapy for several months to foster a relationship with his father, he remained “vehemently opposed” to any type of visitation with the father.  Since the child was 13 at the time of the hearing, and the judge had placed great weight on the child’s wishes, since he was mature enough to express them.

A similar result was reached by the court in Argueta v. Baker, 2016 N.Y. Slip. Op. 01838, where the Appellate Division held that the father had demonstrated that the mother actively interfered with and deliberately frustrated his visitation with the child by failing to provide him with the child’s Florida address, preventing him from seeing the child when he was in Florida, and failing to notify him when the child was in New York. Therefore, the father was entitled to suspension of his child support obligations.

Both parental alienation and parental interference cases turn on specific proof of the child’s and parents’ actions. They may also require testimony of the child. If the parental relationship with the child is already bad, forcing the child to testify is not likely to improve it.

What Makes a Marriage Valid?

Occasionally, it is not clear whether the parties have a valid marriage which can be critical to such issues such as spousal maintenance and equitable distribution. So what makes a marriage valid?

In a recent decision, a trial court held that a purported marriage between an Orthodox Jewish woman and a man was invalid, even though the parties lived together for ten years after a rabbi performed a marriage ceremony for them without a marriage license. Devorah H. v. Steven S., 2015 N.Y. Slip Op. 25228 (Sup. Ct., N.Y. Co.).

The parties never obtained a marriage license. They were living together with their young children from prior marriages in a small apartment, and sought help from their rabbi in finding more suitable housing when a complaint by the woman’s ex-husband to the Administration for Children’s Services caused alarm. The rabbi found them a larger apartment and suggested they should marry before moving. He then officiated an abbreviated religious marriage ceremony for them on the spot, partially completing a standard form certificate (which he didn’t sign) and urged them to get a marriage license. The parties did not not obtain one, however.

Ten years after the purported marriage ceremony, the woman filed for divorce and the man moved to dismiss, contending they were never validly married. The woman relied on New York Domestic Relations Law Sec. 25, which provides that a “properly solemnized” marriage is valid despite the lack of a marriage license.

After hearing the extensive testimony of the man, the woman, and the rabbi on the issue of whether this marriage was “properly solemnized,” the court concluded that the marriage was invalid, noting particularly the rabbi’s testimony that he had repeatedly urged the parties to “go to City Hall” to get a license, and that they had to know that they would need a new solemnization after a license was issued. The man testified that after they left the rabbi’s office, he had torn up the copy of the certificate that the rabbi gave them.

The trial court relied upon the Supreme Court’s decision in Obergefell v. Hodges (576 U.S. – [2015]):

In the over 100 years since the enactment of DRL Sec. 25, the way citizens marry in New York has changed immeasurably. While at one time the wedding ceremony was the central element of the process, that is no longer the case; church weddings are more and more the exception rather than the rule, and the new wage of marriage ceremonies would be almost unrecognizable to earlier generations.  What is key to the process is the marriage license itself.  This is not only true for New York, but for the entire nation.  After all, when the United States Supreme Court issued its historic decision in Obergefell v. Hodges (576 U.S. – [2015]) making the right to same-sex marriage the law of the land, it did so by decreeing that ‘States are required by the Constitution to issue licenses to same-sex couples’ (emphasis added).

Domestic Relations Law Sec. 25 was also critical to the court’s decision, with the court writing that:

DRL Sec. 25, in its present form, serves no useful function in today’s world. Conceivably, if the statute was amended to allow couples who justifiably believed they were legally married with a valid marriage license to protect the marriage from the claim that the license was improperly executed or otherwise defective, that would certainly serve the public interest. But as it exists now, the statute allows for the wholesale disregard of New York’s licensing requirements – requirements that, as we have seen, play a vital role in insuring that marriages are legally valid. Until DLR Sec. 25 is repealed or reformed, courts will be forced to grapple with situations like this, where the parties fully understood that they did not legally marry but one side seeks to abuse the statute to attain the financial remedies only available to litigants who are married to one another.

The court concluded that “[i]n light of the foregoing, it must be concluded that plaintiff cannot show that she and defendant are married, and therefore has failed to prove an essential element of her prima facie case for divorce.”

The court disregarded the couples’ ten years of cohabitation after the quick marriage ceremony as a basis for finding the woman eligible to seek a formal divorce and disposition equitable distribution of the parties’ assets. The court  concluded that the woman could not under the circumstances claim justifiable reliance on a belief that she was in a valid marriage with the man. The court noted that the man, the woman and the rabbi each provided a different account of what happened, leaving the court to sort out questions of credibility, which were resolved against the woman.

So in order for the marriage to be valid, there has to be a marriage license and that the ceremony be performed. Ultimately, it will be interesting to see if this decision will be upheld on appeal.

Allocation of Child Care Costs in Child Support Cases

Under New York law, child support consists of two elements: “basic” child support and the “add-ons.”  Domestic Relations Law §240 (1-b)(c)(4) and Domestic Relations Law §240 (1-b)(c)(6) provide that when a custodial parent is working, seeking work, or is in school or training which will lead to employment, reasonable day care expenses will be allocated in a ratio equal to the each parent’s income to the combined income.

The parties occasionally dispute whether child care expenses are reasonable.  Most often, these disputes tend to focus on the cost and need for daycare. Thus, the court usually needs to conduct a fact finding hearing to determine whether such costs are appropriate and the child care was actually needed. In Pittman v. Williams, 127 A.D.3d 755 (2nd Dept. 2015), the court reviewed the parties’ child care costs and determined allocation of the costs. The court held that

where the custodial parent is working . . . and incurs child care expenses as a result thereof, the court shall determine reasonable child care expenses and such child care expenses, where incurred, shall be prorated [and] [e]ach parent’s pro rata share of the child care expenses shall be separately stated and added” to the parent’s basic child support obligation (see Matter of Scarduzio v Ryan, 86 AD3d 573, 574 (2nd Dept. 2011)). Here, the Supreme Court properly determined that the mother incurred $425 in child care expenses each week. However, the court erred in calculating the amount of child care expenses to be paid by the father. Since the child care provider cared for both the subject child, as well as the mother’s son from a previous relationship, the child care expenses should be divided equally between the two children. Consequently, the cost of caring for the subject child is $212.50 per week, and the father’s pro rata share of the child care expenses is $191.25 per week.

Thus, when the need and the costs of child care are disputed, both of these issues need to be analysed and the parties need to be able to offer evidence either in support or opposition. Parenthetically, unless the costs of child care are grossly excessive, courts do not tend to deny parties reimbursement in situations where the child care was needed.

Terminating Spousal Support Provisions After Divorce Due to Change In Circumstances

In New York, spousal support, also sometimes referred to as “alimony” or “spousal maintenance” can be granted in a divorce case to either spouse by the court pursuant to Domestic Relations Law §236. Alternatively, the parties can agree to a specific amount of maintenance, its duration, and the circumstances under which it will terminate in their settlement agreement.

Factors that a judge or the parties will consider in determining spousal support, among others, include:

The duration of the marriage and the age and health of both parties;
The present and future earning capacity of both parties;
The ability of both to become self-supporting;
The reduced or lost lifetime earning capacity resulting from having foregone or delayed education, employment training or career opportunities during the marriage;
The presence of children;
Tax consequences.

Even once the amount of maintenance is determined and included in the judgment of divorce or settlement agreement, spousal maintenance can be modified.

However, if the maintenance was set by the parties’ settlement  agreement, the party seeking its modification due to a change in circumstances will have to meet a significant burden of proof. Specifically, the party seeking the change will have to show prima facie evidence of “extreme hardship” before the court can hold a hearing to resolve these issues. Extreme hardship means that the payor’s circumstances are so adverse that the party can’t meet its living expenses without modifying spousal support. In a recent decision, McKelvey v. McKelvey, 2015 N.Y. Slip. Op. 02830 (3rd Dept. 2015), the Appellate Division found that the husband presented such evidence when he was able to show that “the undisputed proof indicating that the husband earns, after taxes, less than his monthly support obligation was sufficient to demonstrate prima facie evidence of extreme hardship, and Supreme Court should have held a hearing on his request to modify his support obligation.” Once such evidence is presented then the court hearing the case would hold a fact-finding to determine how spousal maintenance should be modified.

If spousal maintenance was set by a judge after a hearing, the party seeking the modification must establish a substantial change in circumstances and show that the needs of the dependent spouse or financial abilities of the paying spouse that warrant modification. The party making such request would face a significant burden and the court will have to consider such factors as the party’s current and past earnings, costs of living, financial obligations, as well as assets and liabilities.  In Klapper v. Klapper, 204 A.D.2d 518 (2d Dept. 1994), the Second Department held that, in determining whether there was a substantial change in circumstances sufficient to warrant downward modification, “the change is to be measured by a comparison between the payor’s financial circumstances at the time of the motion for downward modification and at the time of divorce or, as the case may be, the time that the order of which modification is sought was made.”

Further, a party who willfully or voluntarily reduces income will not receive a reduction in support payments. If evidence of such actions is presented to the court, the party seeking modification will not receive and is also likely to be ordered to pay the other spouse’s attorneys’ fees.

Enforcement of Payment Obligations Pursuant to Judgment of Divorce

One of the issues that occurs in cases where a party is ordered to make spousal maintenance or child support after the judgment of divorce is entered, is that party may fail to make such payments. This brings up a question of what remedy should be utilized under those circumstances.

A recent decision of Keller v. Keller, 2015 N.Y. Slip. Op. 02453 (2d Dept. 2015) demonstrates how the court approaches a contempt application based upon payor’s failure to pay child support and related expenses. In Keller, a contempt application was brought after the money judgment for child support went unpaid for a number of years, and 6 Family Court orders were apparently ignored by the payor. In discussing the remedies available, the Appellate Division stated that

Pursuant to Domestic Relations Law § 245, a spouse may be punished for contempt for failing to make payments pursuant to [a judgment of divorce], but it must appear presumptively, to the satisfaction of the court,’ that payment cannot be enforced pursuant to Domestic Relations Law §243 (sequestration), Domestic Relations Law §244 (money judgment), CPLR §5241 (income execution) or CPLR §5242 (income deduction)” (Jones v. Jones, 65 A.D.3d 1016, 1016; see Klepp v. Klepp, 35 A.D.3d 386; Higbee v. Higbee, 260 A.D.2d 603). Thus, contempt may be warranted where the record demonstrates “that resort to other, less drastic enforcement mechanisms [has] been exhausted or would be ineffectual” (Capurso v. Capurso, 61 A.D.3d 913, 914; see Jones v. Jones, 65 A.D.3d at 1016; Rosenblitt v. Rosenblitt, 121 A.D.2d 375).

While discussing the specific circumstances of the case, the Appellate Division stated that plaintiff repeatedly failed to pay child support as directed in the parties’ judgment of divorce, or to abide by the court orders and money judgments subsequently entered against him on account of child support arrears and related expenses. The record further showed that the defendant either exhausted all enforcement remedies other than contempt, or that such further attempts “would have been futile”. The court further held that the plaintiff had the burden of going forward with evidence of his inability to make the required payments. After reviewing the facts and applicable law, the Appellate Division found that holding plaintiff in contempt of court was the correct remedy.

If Keller was brought in Family Court, the court’s would apply a different set of rules. In Family Court, under Family Court Act §454(3), there is a presumption that a parent’s failure to pay court ordered child support is willful. Payee’s sworn testimony as to nonpayment of ordered child support payments from payor is a prima facie evidence of a willful violation. Once the violation is shown, the burden shifts to the payor to demonstrate inability to make the required payments.  Upon the court’s finding of willful violation, the court may grant attorneys’ fees, enter a money judgment, make an income deduction order, require an undertaking, make a sequestration order or suspend the respondent’s driving, professional or business license. Further, the court may direct incarceration of 6 months as a remedy as well. Thus, defendant would not have to make a showing that all available remedies were exhausted.

The above discussion illustrates that other remedies should always be considered before seeking a finding of contempt since a finding of contempt may require a substantial motion practice and, most likely, a hearing.  Thus, contempt motions should not be brought unless all other remedies were exhausted or, alternatively, if nonpayment of child support, a willful violation petition should be filed in Family Court.