A client calls you and tells you that their former spouse has been interfering with their visitation rights and that they haven’t seen their kids in three months. Another client tells you that they have lost their employment through no fault of their own, and they cannot find another job, no matter how hard they try. A third client calls to inform you that they have become disabled and can no longer afford to pay child support while a fourth tells you that their child has become emancipated, either through entry into the military, by getting married or by becoming financially independent.
In any event, these respective clients ask you what their rights are with respect to their child support obligation.
You advise these clients that under those circumstances, they might be entitled to a downward modification or a suspension of their child support obligation. Of course, you need to go into greater detail with them, but thus far, it is worth exploring whether they are capable of establishing the requisite change in circumstances or interference with their visitation rights.
The one thing that until recently you could tell your client with reasonable certainty, was that they cannot take the law into their own hands, and that they cannot simply stop paying or reduce their child support payments on their own. They would need to submit an application to the Court, and if successful, the downward modification or suspension of child support would be retroactive to the date of the application. Any arrears in child support that accrued between the time of their disability, loss of employment or the interference with their visitation rights and the time of their petition would not be cancelled by the Court, and they would likely be fully responsible for such child support payments.1
This is the case as the Family Court Act provides in Section 451 that “the court has continuing jurisdiction over any support proceeding brought under this article until its judgment is completely satisfied and may modify, set aside or vacate any order issued in the course of the proceeding, provided, however, 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.”2
This Section of the Family Court Act has thus far, until recently, been interpreted very strictly. 3
Thus, the Court of Appeals has established that the purpose of Family Court Act Section 451 which prohibits the reduction or cancellation of child support arrears is to preclude the forgiveness of child support arrears to ensure that parents are not financially rewarded for failing either to pay the order or to seek its modification.4 In essence, the Court of Appeals has determined that one should not and will not be rewarded for taking the law into their own hands. The Court of Appeals went on to provide that “no excuses at all are to be tolerated with respect to child support. Child support arrears must be awarded in full, regardless of whether the defaulter has good cause for having failed to seek modification prior to their accumulation.”5 “If a party obligated to pay child support wishes to avoid making payment, such as where his or her financial circumstances have deteriorated, that party must make an affirmative request for relief.”6
The Second Department has similarly held that child support arrears may not be reduced or annulled even where the defaulting party shows good cause for failing to make an application for relief from the judgment or order of support prior to the accrual of arrears or where requiring the party to pay the arrears will result in a grievous injustice.7 Similarly, in cases of custodial interference, Courts have determined that interference with visitation rights is not a ground for the cancellation of child support arrears, although such interference may provide a basis for the prospective suspension of child support.8
It is also well established with respect to downward modification of child support that if granted by the Court, the downward modification is effective as of the date of the application.9 Thus, any arrears that accrued prior to the making of the application remain and must be paid in full.
Although the Domestic Relations Order contains a provision authorizing a Court to cancel or annul support arrears that accrue during the period of time in which a parties’ visitation rights have been withheld or wrongfully interfered with, such provision expressly applies with respect to alimony or maintenance arrears.10 It is not applicable with regards to child support and is therefore not inconsistent with Family Court Act Section 451.
The foregoing notwithstanding, a recent case decided by the New York County Family Court threatens to change the status of the law, and if followed or expanded by other Courts, would permit child support arrears to be cancelled or annulled under certain circumstances.11
In that case, the Family Court Judge ruled that a father whose former wife violated several court orders requiring him to pursue her across three countries and forced him to initiate legal actions against her in several jurisdictions was entitled to have his child support arrears vacated pursuant to a New York Order of Support.12
Thus, the father in this case initially turned to the Singapore Court in 2008 as a result of his being denied access to his child.13 The Singapore Court issued an order precluding the mother from taking the child outside of that country.14 The wife ignored that order, took the child to Bali, and did not return to Singapore.15 The Father then pursued the Wife and child in Bali and then to New York where he finally located them. The Father was awarded temporary custody of the child in New York, but the mother failed to turn over the child to the father.16 Based upon a directive from the New York court, the father sought and obtained an order of custody from the Singapore Court.17 By the time this had occurred, the mother had taken the child to Indiana where the Indiana sheriff’s office assisted in bringing the child back to New York.18 The New York Court directed that the father should return the child to Singapore where the litigation continued, ultimately resulting in the father being awarded custody.19 The father then went back to the New York Family Court and filed for a termination of his child support obligation under the New York child support Order.20
The Court in that instance, apparently basing its determination on sympathy for the father’s plight rather than on applicable precedent, carved out an exception to Family Court Act Section 451 on the basis that “the Courts have slowly moved towards creating a case law exception to Section 451.”21 However, while the Family Court Judge stated this, she only cited one case in support of her contention that courts have slowly been creating a case law exception to Section 451.22 One case however, is hardly proof of a movement to overturn, carve out an exception to, or even slightly modify Section 451. Plus, even more significant is the fact that the one case cited by the New York Family Court actually overturned the lower Court’s vacatur of arrears, and upheld the applicability of Section 451.23 Thus, the Family Court relief upon dicta from the First Department which stated that “this is not one of those rare circumstances where an overly strict application of Section 451 of the FCA, which prohibits reductions of accrued child support arrears, would result in grievous injustice to respondent.”24 However, while citing this line from the First Department, the Family Court ignored the First Department’s express ruling that “no excuses at all are tolerated with respect to child support. Child support arrears must be awarded in full, regardless of whether the defaulter has good cause for having failed to seek modification prior to their accumulation.”25 Therefore, while vacating the father’s child support arrears, the Family Court failed to cite a single case in which FCA Section 451 was not expressly adhered to, and in which child support arrears were vacated by a Court.26
That said, there are only two cases the authors are aware of in which a Court vacated child support arrears that had accrued.27 In one of the cases, also from the New York County Family Court, the Court determined that to require the father to pay the arrears that accrued subsequent to the mother’s disappearance with the children would constitute a grievous injustice.28 In the other which was from the Third Department, the Court held that “we believe that this is one of the rare circumstances where an over strict application of [FCA Section 451] would result in grievous injustice to a parent and a form of equitable estoppel should operate.”29
It will be interesting to see if this recent Family Court Case is appealed, and if so, how the First Department rules in this regard. It will also be interesting to see if other Courts adopt the stance of the New York Family Court so as to permit accumulated child support arrears to be vacated.
If this does in fact occur, it is an extremely dangerous precedent as it will permit litigants to take the law into their own hands, rather than rely on the Court system to dole out justice as society dictates and requires.
Russell I. Marnell, lead counsel at the Law Offices of Russell I. Marnell, P.C. in East Meadow and Smithtown and Scott R. Schwartz concentrate in matrimonial and family law.
1. It would be wise to also seek a temporary restraining order in that instance suspending your client’s support obligation, given the fact that it is typically impractical and extremely difficult, if not impossible, to recoup excess support payments once made, even if the court ultimately grants a downward modification retroactive to the date of the application.
2. See Family Court Act Section 451.
3. See Dox v. Tynan, 90 N.Y.2d 166, 659 N.Y.S.2d 231 (Ct. App. 1997); Mandelowitz v. Bodden, 68 A.D.3d 871, 890 N.Y.S.2d 634 (2d Dept. 2009); Department of Social Services v. Spinale, 57 A.D.3d 681, 870 N.Y.S.2d 70 (2d Dept. 2008;) Brooks v. Pierre, 38 A.D.3d 656, 830 N.Y.S.2d 666 (2d Dept. 2007); Doyle v. Doyle, 198 A.D.2d 256, 603 N.Y.S.2d 525 (2d Dept. 1993);Rivera v. Echavarria, 48 A.D.3d 578, 852 N.Y.S.2d 236 (2d Dept. 2008); Commissioner of Social Services v. Alonso, 7 A.D.3d 388, 777 N.Y.S.2d 102 (1st Dept. 2004); Dembitzer v. Rindenow, 35 A.D.3d 791, _N.Y.S.2d _ (2d Dept. 2007.)
7. Mandelowitz v. Bodden, 68 A.D.3d 871, 890 N.Y.S.2d 634 (2d Dept. 2009.)
8. Doyle v. Doyle, 198 A.D.2d 256, 603 N.Y.S.2d 525 (2d Dept. 1993); Rivera v. Echavarria, 48 A.D.3d 578, 852 N.Y.S.2d 236 (2d Dept. 2008.)
9. Sinanis v. Sinanis, 67 A.D.3d 773, 888 N.Y.S.2d 606 (2d Dept. 2009); Rosenberg v. Rosenberg, 215 A.D.2d 365, 626 N.Y.S.2d 505 (2d Dept. 1995.)
10. D.R.L. Section 241.
11. Matter of Carlton v. Heller, N.Y.L.J. March 29, 2010 (Fam. Ct, New York Cty.)
23. Commissioner of Social Services v. Alonso, 7 A.D.3d 388, 777 N.Y.S.2d 102 (1st Dept. 2004.)
26. Matter of Carlton v. Heller, N.Y.L.J. March 29, 2010 (Fam. Ct, New York Cty.)
27. Cruey v. Giray, N.Y.L.J. Jan. 13, 2003); Reynolds v. Oster, 192 N.Y.S.2d 794, 596 N.Y.S.2d 545 (3d Dept. 1993.)
28. Cruey v. Giray, N.Y.L.J. Jan. 13, 2003.)
29. Reynolds v. Oster, 192 N.Y.S.2d 794, 596 N.Y.S.2d 545 (3d Dept. 1993.)
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