COLLECTING SUPPORT ARREARS WITHOUT A MONEY JUDGMENT 

By Joel R. Brandes (written July 14, 1996)

The History Before

The "how tos" of support enforcement have remained a mystery to many a practitioner over the years. Prior to 1980, past due alimony, maintenance and child support awarded by a matrimonial judgment, was not a judgment debt enforceable by execution, levy or plenary action since it was 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 DRL $244 was it an enforceable judgment. Many lawyers lament their only option is an application for a "money judgment" under DRL $244 or an income execution pursuant to CPLR $ 5241 and CPLR $ 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.

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. Consequently, until 1993, it was always necessary to be a "judgment creditor" with a " money judgment" to utilize Article 52. 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 $244, a money judgment may be enforced by execution or in any other manner provided by law for the collection of money judgments.

DRL 236[B][9][b], which was enacted in 1980, continued the concept of maintenance and child support being modifiable. DRL $244 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. While DRL $244 gives the court discretion to chose or refuse to direct entry of a judgment for arrears of maintenance, as to child support it has no discretion. The statue now requires the court to direct entry of a judgment for arrears of child support. DRL $236(B)(9)(b) also provides that the court may not annul or reduce any arrears of child support. It prohibits the reduction or cancellation of arrears of child support and makes judgment for arrears of child support mandatory.

Article 52

A solution...maybe

As a practical matter however, the requirements for utilizing these devices without a money judgment is cumbersome, poorly defined and/or non-existent in some instances. It is perhaps still simpler to first move for and obtain a money judgment against the obligor, in which case all of the remedies in Article 52 may be utilized in the same manner as any other judgment. Equally important, while counsel fees may be awarded to those seeking a money judgment under the DRL and FCA there is no similar provision in a proceeding under Article 51 or 52 of the CPLR. Surely this struggle should come to an end and someone up there (in Albany) should do something about it!

Since time immemorial CPLR 5101 has always 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 order of support, alimony or maintenance, where "arrears/past-due support" have not been reduced to judgment, by any of the devices contained in Article 52, upon the default of a debtor, as defined in CPLR 5241 (a)(7). It permits the use of the income execution in CPLR 5231 and the disclosure devices in CPLR 5224 and 5225. Interestingly, by utilizing the procedure to collect maintenance arrears, (which, ordinarily, may be modified retroactively), a creditor spouse may, in essence, eliminate the discretionary power of the court to modify or cancel such arrears!

CPLR 5101 is silent on who may utilize it. It would appear that it may not be utilized by a pro se litigant, but it may be used by the support collection unit, or the sheriff, the clerk of court or the attorney for the creditor as an officer of the court, -- the only ones who are authorized to issue income executions pursuant to CPLR 5241. "Debtor's Default" is the equivalent of a "default" as defined in CPLR 5241 (a)(7). It is defined as the failure of a debtor to remit to a creditor three payments on the date due in the full amount directed by the order of support, or the accumulation of arrears equal to or greater than the amount directed to be paid for one month, whichever first occurs. CPLR 5241 (a)(1) defines an "order of support" as any temporary or final order, judgment, agreement or stipulation incorporated by reference in such judgment or decree in a matrimonial action or family court proceeding, or any foreign support order, judgment or decree, registered pursuant to section 37-A of the domestic relations law which directs the payment of alimony, maintenance, support or child support. CPLR 5241(a)(2) defines "Debtor" as any person directed to make payments by an order of support. CPLR 5241(a)(3) defines "Creditor" as any person entitled to enforce an order of support, including a support collection unit. The definition of "obligor" is distinctly different than "debtor" and appears in CPLR 5222, 5230, 5332 and 5234, but is only defined in CPLR 5232(d) and refers specifically to that section.

The establishment of a "default" is subject to the procedures established for the determination of a "mistake of fact" for income executions pursuant to CPLR 5241 (e). Procedures should be adhered to. Caution is advised. Before an income execution, execution, levy, restraining notice or other enforcement device can be utilized the obligor must first be served with a copy of it. The underpinnings of its necessity is that the procedure is critical for the determination of a "mistake of fact." CPLR 5241(e) requires that the debtor be given a specific notice of the creditors intention to issue an income execution for support enforcement. While CPLR 5241 (d) provides that the notice may be served upon the debtor by regular mail to his last known residence or such other place where he is likely to receive notice, or in the same manner as a summons may be served, neither the nature or the manner of service of the notice are specified in CPLR 5101. There is no requirement that the obligor be given any particular notice, such as the notice required by CPLR 5241(e) which must appear on an income execution for support enforcement. Nonetheless, due process calls for the obligor to be given notice of why he/she is being served with a copy of the income execution, execution, levy, restraining notice or other enforcement device. Notice is essential to comply with the requirement that the obligor be given 15 days from service of the notice to assert a mistake of fact, to prevent the wrongful utilization of the enforcement device. It is most advisable that the notice indicate the amount of arrears or past-due support and the method of calculation. Service of the notice by ordinary mail, in the same manner as is authorized by CPLR 5241(e) for an income execution for support enforcement, may not be adequate to meet constitutional due process requirements. Service of the notice by personal service is recommended.

DEFENDING AGAINST EXECUTION-"MISTAKE OF FACT"

To utilize CPLR 5101 this statutory procedure for the determination of a "mistake of fact" must be followed, substituting the word "obligor" for "debtor". The creditor may serve the "income execution", "execution", "levy", "restraining notice" or other enforcement device only if the debtor fails to show a mistake of fact within fifteen days, or after a determination pursuant to subdivision (e) has been made.