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LAW AND THE FAMILY

Collection of Support Arrears Without a Money Judgment

The New York Law Journal
July 23, 1996

THE ''HOW-TOs'' of support enforcement have remained a mystery to many a practitioner over the years. Before 1980, past due alimony, maintenance and child support awarded by a matrimonial judgment were not judgment debts enforceable by execution, levy or plenary action since they were subject to retroactive modification. Thus, it was not possible to docket a money judgment for all of the support that might become payable in the future. Only when the award was reduced to a final money judgment through proceedings under Domestic Relations Law &szlig244 was it an enforceable judgment.1

Many lawyers lament that their only option is an application for a ''money judgment'' under DRL &szlig2442 or an income execution pursuant to Civil Practice Law and Rules (CPLR) ß&szlig5241 and 5242, rather than an independent action. This alone is the exclusive remedy for arrears of unpaid maintenance, child support or other payments under a New York matrimonial judgment.3

The enforcement of ''money judgments'' finds its basis in Article 52 of the CPLR. The CPLR succinctly defines its terms. A ''judgment creditor'' is a person in whose favor a money judgment is entered or a person who becomes entitled to enforce it. A ''judgment debtor'' is a person, other than a defendant not summoned in the action, against whom a money judgment is entered. A ''money judgment'' is a judgment, or any part thereof, for a sum of money or directing the payment of a sum of money.4 Consequently, until 1993, it was always necessary to be a ''judgment creditor'' with a ''money judgment'' to use Article 52.

Collection of Money Judgments

Enforcement of arrears of maintenance and child support escaped the province of Article 52 because they had to be reduced to a money judgment. Once obtained under DRL &szlig244, a money judgment may be enforced by execution or in any other manner provided by law for the collection of money judgments.

DRL &szlig236(B)(9)(b), which was enacted in 1980, continued the concept of maintenance and child support being modifiable. DRL &szlig244 was amended in 1986 to prohibit the cancellation of arrears of child support. It also permitted a reduction of spousal support only upon a showing of ''good cause'' for failure to make application for relief from the judgment or order prior to the accrual of the arrears. The facts constituting ''good cause'' must be set forth in a written memorandum.5

While DRL &szlig244 gives the court discretion to chose or refuse to direct entry of a judgment for arrears of maintenance,6 there is no discretion as to child support. The statue now requires the court to direct entry of a judgment for arrears of child support. DRL &szlig236(B)(9)(b) also provides that the court may not annul or reduce any arrears of child support.7 It prohibits the reduction or cancellation of arrears of child support and makes judgment for arrears of child support mandatory.8

Article 52

Little known and rarely used, DRL ß&szlig236(B)(9)(a), 240 (2)(a) and FCA &szlig440(2), which were amended in 1993, authorize the enforcement of New York and registered9 foreign orders for child support, alimony and maintenance, by the enforcement devices in Article 52, without being reduced to a money judgment. This radical departure from traditional enforcement devices available to ordinary judgment creditors was created to better navigate the often choppy waters associated with enforcement of support orders.

The amendments were intended to allow the enforcement of arrears and past due support, which have not been reduced to a money judgment pursuant to DRL &szlig244 or FCA &szlig460, in the same manner as though a money judgment were docketed against the obligor. One might suggest the rights of ''obligors'' are vulnerable, should an enforcer unwittingly, not erroneously, proceed.

To safeguard these rights, the establishment of a ''default'' is subject to the procedures for the determination of a ''mistake of fact'' for income executions. ''Mistake of fact'' is defined in CPLR &szlig5241(a)(8) as an error in the amount of current support or arrears or in the identity of the debtor or that the order of support does not exist or has been vacated. Thus, a shield is available against the mighty sword of enforcement of support arrears.

Enforcement Devices

The Support Collection Unit is now well armed with enforcement devices, in the same manner as the Sheriff, to enforce by execution (CPLR &szlig5230), levy (CPLR &szlig5232) and restraining notice (CPLR &szlig5222) support, alimony or maintenance awarded pursuant to a New York or registered foreign order, when the obligor has been found to be in ''default'' of the order within the meaning of CPLR &szlig5241(a)(7) and the ''mistake of fact'' procedure for income executions in CPLR &szlig5241(e) is used.

As a practical matter however, the requirements for using these devices without a money judgment is cumbersome, poorly defined and/or non-existent in some instances. It is perhaps still simpler first to move for and obtain a money judgment against the obligor, in which case all of the remedies in Article 52 may be used in the same manner as any other judgment. Equally important, while counsel fees may be awarded to those seeking a money judgment under the DRL10 and FCA,11 there is no similar provision in a proceeding under Article 51 or 52 of the CPLR. This certainly seems like a struggle that should come to an end.

Since time immemorial CPLR &szlig5101 has authorized enforcement of a money judgment and order directing the payment of money pursuant to any of the devices in Article 52. In 1993 it was amended to allow enforcement of an*********

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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 published by Lawyers Cooperative Publishing.