Joel R. Brandes
BETTER. FASTER. SIMPLER. That pretty much sums up the
provisions now contained the Domestic Relations Law (DRL), Family Court Act
(FCA) and Social Services Law (SSL) for the automatic modification of child
support and maintenance orders every 36 months and the automatic enforcement
of such orders.
For children on public assistance review is automatic. Any
order of support issued on behalf of a child in receipt of public assistance
or child support enforcement services [FN1] is subject to automatic review and
adjustment by the child support enforcement unit (CSEU) every 36 months
pursuant to SSL s111-h [12]. [FN2] Likewise, any party to a child support
order who is receiving child support enforcement services, [FN3] or to whom
the order is issued on behalf of a child in receipt of public assistance, may
request that the CSEU review the order for adjustment purposes, in accordance
with SSL s111-h, every 36 months from the date the order was issued or from
the date of the last review.
The provisions are not, however, limited to those on public
assistance. Anyone can request "child support enforcement services." SSL
s111-g provides that these services be made available, on application, to
persons not receiving aid to dependent children. Even the application is
friendly. Application is made by (i) completing and signing a form prescribed
by DSS, or (ii) filing a petition with the court or applying to the court in a
proceeding for the establishment of paternity and/or establishment and/or
enforcement of a support obligation, which includes a signed statement
applying for child support services.
'Opt-Out' Requirement
The DRL is so dedicated to its mission, it requires a party to
"opt-out" of child support enforcement services in writing. Otherwise, in
theory although not in practice, they will be imposed. DRL s240 (1) [FN4]
provides that any written application or motion to the court to establish,
modify or enforce a child support obligation, for persons not in receipt of
aid to dependent children, must contain either a request for child support
enforcement services, which would authorize the collection of the support
obligation by the immediate issuance of an income execution for support
enforcement, or a statement that the applicant has applied for or is in
receipt of child support enforcement services; or a statement that the
applicant knows of the availability of child support enforcement services and
has declined them.
Where child support enforcement services have been declined,
the application or motion must contain a statement that the applicant
understands that an income deduction order may be issued pursuant to Civil
Practice Law and Rules s 5242 without other child support enforcement services
and that payment of an administrative fee may be required.
There is one catch. Once the court's jurisdiction is invoked,
it is a long haul. DRL s240 (2)(b)(1) provides that when an order of support
is being or is to be enforced by child support enforcement services, [FN5] the
court must direct that the child support payments be made to the CSEU, which
must immediately issue an income execution for child support or combined
maintenance and child support, and may issue an execution for medical support
enforcement in accordance with the provisions of the support order.
There is an exception for a child who is not in receipt of
public assistance if a written agreement providing for an alternative
arrangement has been reached between the parties. The written agreement may
include an oral stipulation made on the record which results in a written
order. [FN6] DRL s 240 (2)(b)(2) provides that when the court issues an order
of child support or combined child and spousal support on behalf of persons
other than those in receipt of public assistance or in receipt of child
support services, it must issue an income deduction order pursuant to CPLR
s5242 at the same time it issues the support order unless the court finds and
sets forth in writing, that an agreement providing for an alternative
arrangement has been reached between the parties.
The agreement may include a written agreement or an oral
stipulation, made on the record, which results in a written order. [FN7]
Adjustment Required
People in economic trouble can benefit from the statute. DRL
s240 (4) [FN8] provides that a party to a child support order issued on behalf
of a child in receipt of public assistance or child support enforcement
services may seek a CSEU review for adjustment purposes. Under SSL s111-h this
review may be sought every 36 months from the date the order was issued or
from the date of the last review. An important feature of this provision is
that the order must be adjusted if (as of the date of the CSEU's review) the
correct amount of child support as calculated according to the CSSA [FN9]
would deviate by at least 10 percent from the child support ordered in the
current order of support.
Another real-world approach of the legislation compels an
order to be adjusted if the current order of support does not provide for the
health care needs of the child through insurance or otherwise. To assure Due
Process and preserve the sanctity of the review, the CSEU's review of a child
support order must be made on notice to all parties to the current support
order.
The law is considerably deferential to the Child Support
Standards Act in reviewing these orders. Where a child support order or
modification to it was issued after Sept. 15, 1989 (the effective date of the
CSSA), and the child support percentages for establishing the presumptively
correct basic child support obligation were not applied because of a finding
by the court that their application was unjust or inappropriate, the court and
the CSEU must consider, in reviewing the order, whether the factors that gave
rise to the rebuttal of the application of the percentages still exist, to the
extent that such factors are known.
The law does not limit, restrict, expand or impair the rights
of any party to file for a modification of a child support order under any
other law. [FN10]
The SSL [FN11] provides that in any case in which there is an
assignment of support rights or in which a request for an adjustment review is
made, the CSEU must initiate a review of the order for adjustment purposes no
later than three years after the establishment, adjustment or modification of
the order or the most recent review unless: (i) the child is in receipt of
public assistance, and the CSEU determines that such review would not be in
the best interest of the child, and neither parent has requested review; or
(ii) the child is not in receipt of public assistance and neither parent has
requested such review.
The CSEU must conduct its review in a manner consistent with
FCA s413 and DRL s240 (1-b), the child support guidelines, and the definition
of adjustment as set forth in FCA s413(3) and DRL s240(1)(b).
Where public assistance is involved notice must be given
before a review. More precisely, where the CSEU has determined that an
adjustment review is appropriate, and the child or children are in receipt of
public assistance, the unit must, at least 30 days before the commencement of
the review, notify the parties that the CSEU will commence review, and provide
notice of their obligations pursuant to SSL s111-h[16]. Notice must also be
provided, whether or not a child is in receipt of public assistance, upon a
request by any party for adjustment review. [FN12]
As with most required notices, the notice must contain very
specific items. They include a statement that the party must, within 30 days
of the date of the notice, send to the CSEU: (i) a current and representative
pay-check stub with respect to each source of employment income; (ii) copies
of the most recently filed state and federal income tax returns; and (iii) a
sworn statement of net worth that must identify the carrier and policy number
of all health insurance currently in place, for the benefit of the obligor and
eligible dependents, and whether such coverage has been in place for the
previous year.
The notice must also include a statement that the party may
schedule a conference with the CSEU and submit a written explanation of
current tax and financial information to determine the appropriate
modification and thereby may avoid further administrative and judicial
proceedings.
Federal Help
Interestingly, the federal government has given the green
light on helping out. In the event a party fails to provide tax and financial
information timely, the Department of Social Services is entitled to certain
tax data from the Commissioner of Taxation and Finance pursuant s171-g of the
tax law and SSLs111-c and the notice must so state. The CSEU may review and
use this material to initiate proceedings to adjust the child support order.
[FN13]
The review procedures that have been promulgated [FN14] by DSS
require the CSEU to calculate the basic child support obligation (BCSO) and
determine whether there is an adequate basis to adjust the amount of the order
as required by FCA s413(3)(a). A difference of 10 percent or greater between
the newly calculated BCSO and the BCSO contained in the order under review,
forms an adequate basis to adjust the order.
If the order was issued subsequent to Sept. 15, 1989, and the
order explicitly finds that specific factors caused the presumptively correct
BCSO to be rebutted as unjust or inappropriate, the CSEU must then determine
whether the stated factors that gave rise to the rebuttal still exist and thus
serve as a basis for adjustment. [FN15]
Upon the conclusion of the adjustment review, the CSEU must
send the findings of its review by first class mail to the parties, together
with a notice describing the rights of the parties to seek adjustment pursuant
to the applicable provisions of law. [FN16]
Where the CSEU determines a basis for an upward adjustment, it
must file a proposed order together with an affidavit, with the clerk of the
appropriate court and send a copy by first class mail to the parties. [FN17]
Where it finds a basis for downward adjustment, these papers must be filed by
the party seeking the adjustment. [FN18]
An Adverse Ruling
The recipient of an adverse ruling is not out of luck yet. DRL
s240 (4)(2) [FN19] provides that any party has 35 days from the date of
mailing [FN20] to submit (to the court identified on the order) written
objections to the finding and proposed order. If objections are submitted by
either party or by the CSEU, a hearing must be scheduled by the court on
notice to the parties and the CSEU. The parties and CSEU then have the right
to be heard by the court and to offer evidence in support of or in opposition
to adjustment of the support order.
If the court receives no written objection to the support
order within 35 days of the mailing of the proposed order the clerk of the
court must immediately enter the order without further review, modification or
other prior action by the court or any judge or hearing examiner, and the
clerk must immediately transmit copies of the order of support to the parties
and to the CSEU.
To get the ball rolling, a proceeding is commenced in the
Family Court by the filing of a written objection to the proposed adjusted
order. The hearing is held, initially before a Hearing Examiner, [FN21] giving
the parties and the CSEU the opportunity to offer evidence on whether the
presumptive basic child support obligation set forth in the proposed order is
unjust or inappropriate and whether the reviewed order should be adjusted
pursuant to FCA s413(3). [FN22] The party filing objections to a proposed
adjusted order bears the burden of proof. [FN23]
Those seeking refuge in Family Court best be forewarned to
proceed with caution. The Hearing Examiner has authority in child support
adjustment proceedings to enter an adjusted order based on the proof before
him/her and is not limited to overruling the correctness of the proposed
order. [FN24] The date of filing and service of the proposed order is the date
of the order and the date to which the order must be made retroactive. [FN25]
The law is very self-contained. It even speaks to how and why
to vacate these orders. DRL s240(4)(3) [FN26] provides that a motion to vacate
an order of support, adjusted pursuant to this section, may be made no later
than 45 days after an adjusted support order is executed by the court, where
no written objection to the proposed order has been timely received by the
court. The motion must be granted only upon a determination by the court
issuing the order that personal jurisdiction was not timely obtained over the
moving party.
FN1. 18 NYCRR 347.17 requires payment of a $1 application fee
and the deduction of actual costs of collection, up to 25 percent of each
payment, from amounts collected.
FN2. DRL s240[2][c].
FN3. See SSL s111-g.
FN4. See also FCA s440(1)(a).
FN5. Pursuant to SSL s111-g.
FN6. DRL s240(2)(b)(1) provides, in part: "For purposes of
this paragraph, good cause shall mean substantial harm to the debtor. The
absence of an arrearage or the mere issuance of an income execution shall not
constitute good cause." See also FCA s440(1)(b)(1).
FN7. DRL s240(b) (2) provides, in part: "For purposes of this
paragraph, good cause shall mean substantial harm to the debtor. The absence
of an arrearage or the mere issuance of an income deduction order shall not
constitute good cause." See also FCA s440 (1)(b)(2).
FN8. The provisions of this section are almost identical to
the provisions of FCA s413.(3)(a). Both sections must be cross referenced with
SSL s111-h (12- 17) and 18 NYCRR 347.26.
FN9. See DRL s240(1-b); See also FCA s413 (1)(b).
FN10. See DRL ss236(B)(9)(b) and 240(1-b); FCA ss413(1)(b) and
451.
FN11. SSL s111-h(12); 18 NYCRR 347.26(b).
FN12. SSL s111-h(15).
FN13. SSL s111-h(16).
FN14. 18 NYCRR 347.26(e).
FN15. 18 NYCRR 347.26(e).
FN16. SSL s111-h(13).
FN17. SSL s111-h(14); FCA s413(3)(c); 18 NYCRR 347.26(f)(1).
FN18. SSL s111-h(14); FCA s413(3)(c); 18 NYCRR 347.26(f)(2).
FN19. See FCA s413 (3)(c).
FN20. The order must be served with notice of entry for the
time period to commence. Lisa C. v. Mark C. 643 NYS2d 908 (Fam.Ct., Monroe
Co., 1996).
FN21. FCA s413(3)(c); 18 NYCRR 347.26(f)(1)(iii).
FN22. 18 NYCRR 347.26 (f).
FN23. Dept of Social Services v. Clarke, 167 Misc2d 836 (Fam.Ct.,
Monroe Co., 1996).
FN24. Yuschuk v. Eichas 643 NYS2d 326 (Fam.Ct., Monroe Co.,
1996); Lisa C. v. Mark C. 643 NYS2d 908 (Fam.Ct., Monroe Co., 1996); but see
Matter of Maureen K, New York Law Journal, Aug. 26, 1996, p.32, col.1, Fam.Ct.,
Monroe Co. (Kohot, J) holding that as a court of limited jurisdiction it can
only affirm or deny the proposed order.
FN25. Figueroa v. Figueroa, 648 NYS2d 290 (Fam.Ct., Monroe
Co., 1996).
FN26. See FCA s413(3)(d).
Joel R. Brandes and Carole L. Weidman have law offices in New
York City and Garden City. They co-authored, with the late Doris Jonas Freed
and Henry H. Foster, Law and the Family New York, and co-authored Law and the
Family New York Forms (both, Lawyers Cooperative Publishing).
10/22/96 NYLJ 3, (col. 1)
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