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.

Multiple Child Support Orders and Change In Circumstances Warranting Modification of Child Support

One of the issues that I periodically see in child support cases is that a party who is already paying child support has another child or children with a different party, resulting in additional child support orders.  Usually in those circumstances, the child who is the subject of the first order is receiving support on the entire income of the payor.  The subsequent children receive child support on the basis of payor’s income after child support payable pursuant to the first order is deducted.  As a result, the child who is the subject of the first order will always receive higher child support amount than the child or children receiving child support under the subsequent orders.  In addition, the payor’s income is subject to multiple orders and can pay half or more of his gross income in child support.

The above approach has been traditionally applied in Family Court cases.  In a recent decision, Demetrius D. v. Lori T., 2011 N.Y. Slip. Op. 21025 (Fam. Ct. Clinton Co. 2011), the court questioned the logic of this approach.  The court noted that:

From the children’s perspective, the fact that one child receives more child support than another child based solely upon which custodial parent obtains the first support order is unfair and irrational. Obviously, the children cannot control which parent applies for support first nor can the child control the speed of litigation. Nevertheless, this is the statutory law of the State of New York. It should be noted that it is not the age of the children, but rather the order in which the children receive a child support order that determines which children will receive preference under the law[FN4]. Of course, it would also be unfair and irrational to give preference to one child over another based solely upon birth order.

Id. at 3.

Further, the court stated that creation of these additional support order may be grounds for modifying the original child support obligation under Family Court Act § 413(1)(b)(5)(vii)(D):

Subdivision D also raises multiple issues with respect to modification petitions. There is no express provision in the Family Court Act which limits the Subdivision D deduction in modification cases to court orders issued prior to the original order sought to be modified. In other words, in the event that a parent demonstrates a material change of circumstances which warrants the re-application of the Child Support Standards Act, there is no language that excludes new orders issued between the date of the original order and the date of the hearing on modification petition from Subdivision D. Thus, the Court concludes that if there is a material change of circumstances that warrants the new application of the Child Support Standards Act, the non-custodial parent would be entitled to a deduction under Subdivision D for all child support actually paid pursuant to Court orders for other children, whether or not the Court orders for other children were issued before or after the original order for the subject child.

But in Demetrius D., what the court gave with one hand, it took with the other.  The more flexible approach as stated in the decision, was subject to application of general child support modification standards, including a determination that the hardship came as a result of payor’s voluntary actions and was self-inflicted. The court found that having additional children was a self-inflicted hardship that came as a result of his voluntary actions that does not warrant downward modification of payor’s child support obligation.

What is the lesson here for the family law lawyers? If the payor can establish that somehow the act of having more children was involuntary, then the payor may be entitled to a modification of the original child support obligation on the basis of subsequent orders.  It is hard to see the circumstances where it would be remotely possible. On the other hand, under appropriate circumstances, the above approach may help a payor dealing with multiple child support orders.

Limitations on Child Support Arrears and Child Support Standards Act

One question that I am often asked with respect to child support arrears is whether there is a limit on the amount of child support arrears that can be accrued.  My usual response is that there is only one limitation in the Child Support Standards Act with respect to the limits on child support arrears and it exists solely in situations where the payor’s income is below the amount set by the poverty income guidelines for the single person, as reported by the federal Department of Health and Human Services.

Specifically, where the payor’s annual income is below the poverty income guidelines, then in accordance with the Family Court Act §413(1)(g), then payor’s child support arrears are limited to $500.00.  For 2009, the federal poverty guideline for a single person was set at $10,830.00.  This provision can be very helpful to family law lawyers and their clients since this provision allows for retroactive limitation on child support arrears, but it is limited to those situation where the party who owes child support has an extremely low level of income.

There are some limitations even in situations where the payor’s income was below the poverty guideline amount.  The party charged with paying child support couldn’t have voluntarily reduced his/her income, and must demonstrate inability to earn a higher amount (i.e., cannot have income imputed on the basis of ability to pay or other factors).  On practical level, the most likely situation where this provision becomes applicable is typically where a party becomes disabled and does not seek downward modification of the child support obligation until after child support arrears have accrued.

What is also interesting about the Family Court Act §413(1)(g), is that it directly contradicts Family Court Act §451, which prohibits the court from reducing or annulling arrears accrued prior to the filing of a modification petition unless the party shows good cause for failure to make the application sooner.  The courts were able to harmonize both sections by deciding that if the payor’s income is below the poverty level guideline, then by operation of section 413(1)(g) the arrears had never accrued.  Ronald F. v. Kathy Jo O., 25 Misc 3d 1229 (Fam.Ct. Erie Co. 2009)

Child Support, Emancipation and Child’s Economic Independence

One of the most common questions I hear as a part of my family law practice is a question of when a child become emancipated for child support purposes.  My usual response is that emancipation of minors depends on a variety of circumstances.  The Child Support Standards Act’s provisions dealing with emancipation hold that the child becomes emancipated upon reaching the age of 21, joining military, or getting married. In addition, the child may become constructively emancipated by willingly abandons the parent and withdrawing from parental supervision and control. In addition, the child may become emancipated, assuming the child is of employable age, by becoming economically independent of the parents. If emancipation is sought for a child who is of employable age, and is working, I usually tell my client that the child has to work between 35 and 40 hours per week and generate sufficient income to be economically independent of the parents.  In some situations, however, even a full-time job may not be enough.

A recent case, Thomas B. v. Lydia D., 2009 N.Y. Slip. Op. 06789 (1st Dept. 2009), is an excellent illustration of these concepts.  In Thomas B., the Appellate Division held that two parents may not, by written agreement, terminate the child support obligation because of the child’s full-time employment, without a simultaneous showing of the economic independence of the child.

Pursuant to a stipulation of settlement entered into as part of the parties’ judgment of divorce, father was obligated to pay annual child support until the parties’ child reached the age of 21 or was otherwise “emancipated.”  The stipulation defined emancipation as “the Child’s engaging in full-time employment; full-time employment during a scheduled school recess or vacation period shall not, however, be deemed an emancipation event.”  The father brought a motion seeking to declare the child emancipated and argued that under the terms of the stipulation of settlement, the child became emancipated by reason of his full-time employment at a music store from July through December 2005.  The mother opposed the motion, arguing that during the time in question, the child was living in a halfway house as part of his treatment for substance abuse.  His employment at the music store was one of the conditions of that treatment.  She also argued that the child was not economically independent, as he received financial support from her in addition to her payment of 100% of his unreimbursed medical expenses.

The court stated that mere full time employment was not enough, and emancipation would require economic independence from the child’s parents which is not established by merely working a standard, full-time work week.  Thus, even where a child is working but still relies on a parent for significant economic support such as paying for utilities, food, car insurance, medical insurance and the like, the child cannot be considered economically independent, and thus is not emancipated. This is true even where the child is residing with neither of the parties, so long as the child is still dependent on one of the parties for a significant portion of his or her support.  Moreover, the parties cannot contract away the duty of child support.  The Appellate Division found insufficient evidence in the record to support a finding that the child was economically independent of his parents as a result of his working 35 hours per week while living in a halfway house. The child’s employment was one of the requirements of participation in the halfway house substance abuse program.  In Thomas B., it was clear, that although he was working 35 hours per week during the period of time in question, the child was not economically independent of his parents, and thus was not emancipated during that period of time.

One lesson of Thomas B. is that the lawyer dealing with this type of situation must present sufficient evidence to establish the child’s work hours and income, as well as his/her needs and expenses.  It is also critical to present testimony as to whether the other parent is meeting the child’s other financial needs, and whether such financial assistance is necessary or is merely voluntary.  If you believe that your child became emancipated due to employment, I would recommend consulting with a family law attorney.