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

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.