Family Court and Willful Failure to Pay Child Support

There is a presumption, applicable to child support enforcement proceedings in Family Court that a party, against whom a child support order was issued, has sufficient means to support his/her minor children. See Family Court Act § 437. The evidence that the party directed to pay child support has failed to pay support as ordered, constitutes “prima facie evidence of a willful violation”. Family Court Act § 454(3)(a). Once the petition alleging willful violation of a child support order was filed in the Family Court, the burden then shifts to respondent to adduce some competent, credible evidence of his/her inability to make the required payments. If the requisite showing is not made, the party will be found to have willfully failed to pay child support. Once this finding is made, the party is liable to a range of penalties, including attorneys fees and possible incarceration.

This presumption does not apply to child support enforcement proceedings brought in Supreme Court under the Domestic Relations law. If an enforcement proceeding is brought in Supreme Court, the usual remedies sought are a judgment for any unpaid arrears, attorneys fees and, possibly, a finding of contempt. The burden of proof applicable to contempt proceedings is much higher than that applicable to the proceedings brought under Family Court Act § 437.

Calculations of Child Support in New York

The New York courts use a statutory guidelines to determine what child support amount the non-custodial parent is obligated to pay. The guidelines as applicable to the Supreme Court in actions for separation and divorce are contained in Domestic Relations Law §240 and its counterpart for the Family Court is contained in Family Court Act §413. New York child support amounts are based partly on the non-custodial parent’s adjusted gross income and partly on how many children are on the order. The court determines the non-custodial parent’s gross income, and then deducts from that amount Medicare, social security tax, New York City or Yonkers tax, and other allowable deductions to establish the non-custodial parent’s adjusted gross income. An identical calculation is performed with respect to the income of the custodial parent. The court then multiplies the combined adjusted gross income by the standard guideline percentage for the number of children. These percentages are 17% for one child, 25% for two children, 29% for three children, 31% for four children, and at least 35% for five or more children. Subsequently, that child support amount is multiplied by the ratio of non-custodial parent’s adjusted gross income to the combined adjusted gross income.

The standard guideline is applied to most parental earnings up to $80,000 (minus certain local and social security tax amounts). This includes any worker’s compensation, disability payments, unemployment benefits, social security payments, and many other forms of income. Beyond $80,000, the courts determine whether or not to use the percentage guidelines, and may consider other factors in determining the full support amount.

The State of New York provides for interest on missed payments and adjudicated arrears at a rate of 9% per year, but only on arrearages reduced to a money judgment by the courts.

Child Support Modification and Contents of a Family Court Petition

In order for the parent having primary physical residence of the child to seek upward modification of an existing child support obligation, a Family Court petition must present factual allegations representing a substantial change in circumstances. If such allegations are not presented, such petition fails to state a cause of action and is subject to dismissal. In meeting such burden, the party must establish the “’specific increases in the costs associated with the child’s basic necessities’ … ‘as well as the expenses associated with the child’s varied interests and school activities’ and cannot ‘[rely] on generalized claims of increases due to the child’s maturity or inflation’”. Cadwell v. Cadwell, 294 A.D.2d 434 (2d Dept. 2002); Gentry v. Littlewood, 269 A.D.2d 846 (4th Dept. 2000); Greenway v. Greenway, 262 A.D.2d 855 (3rd Dept. 1999).
Therefore, a petition should contain specific allegations addressing the change in the child’s needs and explaining how the parent with whom the child resides is unable to meet them.

Child Support and Imputed Income

It is not infrequent for the non-custodial parent to claim an annual income far less than he/she actually earns. In those situations, the courts can impute additional income to the party paying child support. As held by the Appellate Division, Second Department, in Strella v. Ferro, the court “need not rely upon the party’s own account of his or her finances, but may impute income based upon the party’s past income or demonstrated earning potential.” The imputed income can be established in several different ways.

One way to establish that a party’s actual income is higher than his/her reported income is to demonstrate how his/her reported lifestyle could not be supported by the reported income.

In Strella, the father claimed that he had been unemployed and only recently begun to earn $500 per week despite having recently earned as much as $101,000 per year. The Court imputed an income of $96,000 to the father. In doing so, the Appellate Court noted that:

Here, the father’s claimed annual household expenses were approximately double his claimed annual income in 2004 and 2005. Additionally, his financial data did not indicate that he used money from his savings or that he incurred greater debt to pay the remaining amount of his annual expenses not covered by his average annual income. During the relevant period, he did not liquidate any of his investments, he had no outstanding balance on his home equity line of credit, and his credit card statements showed no unpaid balances of a size and nature to correspond to his household expenses.

In Barnett v Ruotolo, the Appellate Division, Second Department, held that in exercising the discretion to impute income to a party, a Support Magistrate is required to provide a clear record of the source from which the income is imputed and the reasons for such imputation. In that case, the father did not testify and chose to rely on the financial documentation he had submitted. The father’s financial documentation indicated that his monthly income was only approximately one-third of his stated monthly expenses, and no evidence was submitted to show that these monthly expenses were not being paid in a timely manner. The Appellate Division held that lower court properly exercised its discretion in imputing income based upon the father’s self-reported financial affidavit for the purpose of calculating his child support obligation.

If the party’s expenses exceed his/her reported income, and there is no obvious diminution of the party’s assets, then the reported income is likely to be under-reported. Under those circumstances, the court should look beyond the filed tax return to calculate the appropriate child support amount.

The court can also impute income by averaging what was reported on most recent individual tax returns. In Y.W., v. T-T.J., the Appellate Division, First Department, reversed a child support order of $3,288 per month and remanded the case back for recalculation of the basic child support obligation. The Appellate Division held that since each party claimed that the income as reflected on the other’s tax return was not accurate, and the parties were unable to produce sufficient evidence to otherwise convince the support magistrate about their respective incomes, the magistrate properly decided to impute income to the parties by averaging what was reported on their most recent (2004 and 2005) individual tax returns.

Out-of-State Orders and New York Child Support

In a recent decision, Spencer v. Spencer, the New York Court of Appeals has finally clarified issues related to application of the Uniform Interstate Family Support Act (“UIFSA”).

Prior to Spencer, in situations where a party had a child support order from a state where the age of emancipation was less than 21, the child support order expired due to the age of the child, and if New York courts had jurisdiction over the party, the custodial parent could bring a new child support petition in New York. Since the petition was treated as a new filing, and not a modification of the out-of-state order, the New York courts then could order child support to continue until the age of 21. This was highly inequitable to parties who had child support orders from the states where the age of emancipation was 18, such as Ohio, or 19, such as California.

Spencer was decided under the following facts. The parties in dispute were married and had several children while living in Connecticut. Following divorce, the mother moved to New York while the father continued to reside in Connecticut. When the eldest son turned 18, the Connecticut support order expired. In 2004, the alimony obligation also expired and the father, as the court noted, “began working three days a week as a consultant.” The mother brought a new child support petition in New York. The New York Family Court issued a new order in 2005 directing payment of child support lasting until age 21.

The Court of Appeals held that the New York order was a modification of the Connecticut support order under the one-order policy of the UIFSA. The Court of Appeals stated that the New York Family Court lacked subject matter jurisdiction to modify an out-of-state order, and child support terminated pursuant to the terms of the initial order. As a result of the decision, prior orders entered under similar circumstances should be vacated. Unfortunately, the Court of Appeals did not address whether recoupment of the child support paid under a new New York order is available to the parent who was paying child support.