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.