Joel R. Brandes and Carole L. Weidman
THIS YEAR SEEMS particularly well suited to the spouse who is
eager to getting even with an "ex" who has not paid up. Domestic Relations Law
s245 provides that where a spouse defaults in paying any sum of money as
required by a judgment or order and the court is satisfied that payment cannot
be enforced by sequestration of his property or by resorting to security, if
any, that was given (DRL s243), money judgment (DRL s244), income execution
(Civil Practice Law and Rules s5244) or income deduction order (CPLR 5242),
the aggrieved spouse may make application pursuant to s756 of the Judiciary
Law for the punishment of a contempt of court.
Recovery of Money
The purpose of contempt proceedings is to recover money due
and to punish the spouse for disobeying the court's mandate. [FN1] DRL s245
eases the burden of obtaining relief by providing that no demand is necessary
upon the defaulting spouse before proceeding and punishing a recalcitrant
party.
Likewise, a defaulting spouse can be punished for disobeying
an order, regardless of whether he has been personally served with a copy,
where he has actual knowledge of it. [FN2] Judiciary Law s761 provides that
the application is brought and heard in the same manner as a motion on notice,
by personal service of a notice of motion and affidavit or by order to show
cause that may be served on the accused's attorney. [FN3]
Failure to follow procedural requirements can prove fatal. An
application to punish for contempt will be rendered void unless on its face it
contains both a notice that the purpose of the hearing is to punish for
contempt and that such punishment may consist of a fine or imprisonment.
Equally important, the warning must be printed in eight-point bold-face type
stating that failure to appear may result in an arrest or an imprisonment.
Absent this notice and warning, the court is without jurisdiction to punish
for contempt. [FN4]
The accused must also be advised by the court of the right to
counsel and assigned an attorney if "financially unable to obtain counsel."
[FN5] DRL s245 requires a finding that payment cannot be enforced pursuant to
DRL ss243 or 244 or CPLR ss5241 and 5242 and the exhaustion of these remedies
or a finding that they would be ineffectual as a prerequisite to a contempt
for disobeying an order requiring payment of money in a matrimonial action.
[FN6] The court must find willfulness and find expressly that the actions of
the defaulting spouse were calculated to or actually did defeat, impair or
impede or prejudice the other spouses rights or remedies. [FN7] Nonpayment
alone does not establish the requisite willfulness to support contempt. [FN8]
DRL s246(3) provides that financial inability to pay is a
defense to a contempt proceeding under DRL s245. A person who asserts in an
opposing affidavit financial inability to comply with the order is entitled to
an evidentiary hearing to resolve conflicting claims as to his or her ability
to pay. [FN9] However, the taking of oral proof before the court is not a
prerequisite to a finding of contempt, where there is no dispute as to the
material facts. [FN10]
The punishment for contempt for failure to make ordered
payments is a restraint of freedom until payment is made. [FN11] The
defaulting spouse may pay and escape at once. It it is determined that the
accused committed the offense charged and that it was calculated to or
actually did defeat, impair, impede or prejudice the rights or remedies of the
other spouse the court must make a final order directing fine, imprisonment or
both, as the case requires. [FN12]
Civil Rights Law s72 limits the length of imprisonment for
nonpayment of alimony, maintenance, distributive award, special relief in a
matrimonial action and counsel fees in a divorce case to three months for a
default of less than $500, and to six months for $500 or more. Noticeably
absent is any mention of child support. If a party has an actual loss or
injury because of the proven other spouse's misconduct, a fine must be imposed
sufficient to indemnify the aggrieved party and when collected, paid to the
aggrieved party. [FN13]
In contrast to the DRL, the Family Court Act (FCA) takes a
more heavy-handed approach by providing for commitment as one of the remedies
for nonpayment of support. Section 454(2) provides that where a respondent is
brought before the court for failure to obey any "lawful order" of the Family
Court [FN14] for support and following a hearing the court is satisfied that
the respondent has failed to obey the order, it may enter a money judgment,
make an income deduction order, require an undertaking, make a sequestration
order or suspend the respondent's driving, professional or business license.
Willful Disobedience
As a further deterrent, FCA s454(3) provides upon a finding
that respondent has willfully failed to obey a lawful order of support, it
must order the respondent to pay counsel fees to the petitioner's attorney. In
addition to, or in lieu of any or all of the remedies in FCA s454(2) it may
commit the respondent to jail for a term not to exceed six months or place the
respondent on probation. [FN15] The imprisonment is not for failure to pay a
civil debt. It is imposed solely for willful disobedience of the court's
mandate. [FN16]
Enforcement proceedings are commenced by filing a petition
containing an allegation that the respondent has failed to obey a lawful order
of the court. [FN17] In contrast to DRL s245, which only allows an "aggrieved
spouse" to bring on the contempt application, the original petitioner, the
Support Collection Unit, any person to whom the order is payable and other
interested parties, may file a petition. [FN18]
After the petition is filed the court issues a summons and a
copy of the petition requiring the respondent to show cause why he or she
should not be dealt with in accordance with FCA s454. FCA s453(b) provides
that the summons must include on its face printed or typewritten in a size
equal to at least eight-point bold type, a notice, warning the respondent that
a failure to appear in court may result in immediate arrest and that, after an
appearance in court, a finding that the respondent willfully failed to obey
the order may result in commitment to jail for a term not to exceed six months
for contempt of court. This requirement is jurisdictional. [FN19]
Nonpayment alone does not establish the failure to pay as
"willful." [FN20] An evidentiary hearing must be held to resolve conflicting
claims as to ability to pay. The hearing does not need to follow any
particular form provided the parties are under oath, the petitioner submits
proof of the respondent's nonpayment, as well as the respondent's ability to
pay, and the respondent is afforded the opportunity to rebut evidence. [FN21]
There must be proof as well as argument, not solely colloquy. [FN22]
It appears that the appropriate burden of proof in a
commitment proceeding is proof by "clear and convincing evidence." [FN23]
Although the burden of proof remains with the petitioner throughout the
proceeding, the petitioner's initial burden is to prove that the respondent
has not paid support pursuant to court order. This is so because under FCA
s454 a respondent is prima facie presumed to have sufficient means to support
his or her spouse and children less than 21 years of age.
FCA s455 [5] provides that a finding of "willfulness" requires
proof of both the ability to pay support and the failure to do so. FCA s454,
3(a) provides that for purposes of FCA s454 "... failure to pay support, as
ordered, shall constitute prima facie evidence of a willful violation." This
showing then shifts the "burden of going forward" to the respondent who must
then present evidence sufficient to rebut the evidence of willful violation. A
respondent does not meet his burden where he has the ability to pay. [FN24]
Two Burdens
The Court of Appeals in Powers v. Powers [FN25] explained the
difference between the "burden of proof" and the "burden of going forward" in
commitment proceedings and distinguished between contempt and commitment
proceedings. The parties' divorce judgment provided that respondent, a
self-employed certified public accountant, would pay petitioner child support
of $225 per week and maintenance of $375 per week.
After petitioner filed a third violation petition, respondent
produced at the violation hearing a schedule of weekly income and expenses for
the relevant period. It showed income for the seven-month period of $70,584
and expenses of $83,589 ($53,624 business and $29,965 personal expenses). He
submitted no substantiating documentation and no tax return for the year.
He testified that he had also received some loans and gifts
not reflected on the schedule, that he maintained no separate business or
personal bank accounts and no checking account in his own name. He deposited
all his income in an account in the name of his current wife, who worked
periodically for him and had no independent income.
Respondent made less than half of the agreed-upon payments.
Family Court confirmed the Hearing Examiner's finding of willful violation,
held respondent in "contempt" and sentenced him to 60 days in jail. Sentence
was suspended on condition that respondent make payments in accordance with
the stipulation. When he defaulted, petitioner filed a fourth violation
petition, along with an affidavit of the Supervisor of the Support Collection
Unit, stating that respondent was in arrears for $3,325 since the prior
determination.
In a proceeding to establish respondent's violation of the
condition of his suspended sentence, Family Court confirmed the finding of
willful violation and ordered him committed to jail for a term of 60 days, or
until he purged himself by payment of arrearages totaling $23,880.
The Appellate Division reversed. Thereafter, the Court of
Appeals reversed the Appellate Division, finding petitioner sustained her
burden of proof. It held that for purposes of FCA s454, failure to pay support
as ordered constitutes "prima facie evidence of a willful violation." Proof
that respondent had failed to pay support as ordered established petitioner's
direct case of willful violation.
At that point, the "burden of going forward" shifted to
respondent to rebut petitioner's prima facie evidence of a willful violation.
The burden of going forward required respondent to offer some competent,
credible evidence of his inability to make the required payments. In fact,
respondent's efforts dramatized his actual ability to meet his support
obligation by acknowledging income in excess of $70,000 for a seven-month
period. His predilection, however, was simply to spend his money on items
other than support.
Respondent's fashionable habits of exhausting his funds, with
no credible evidence indicating the necessity for devoting the money to
expenses other than to the support to his former spouse and five children, as
required by law, did nothing to satisfy his burden of going forward on the
issue of financial inability.
Respondent argued, resting on DRL s245, that Family Court
could not find him in contempt unless it first concluded that there was no
alternative to enforcing the order of support and that it requires the Supreme
Court to consider other means of enforcing a support order before holding the
defaulting party in contempt.
The Court of Appeals rejected the argument, holding that the
two statutes are distinctly different. There is no presumption of ability to
pay in a contempt proceeding. Unlike DRL s245, FCA s454 explicitly allows the
court a choice of probation or jail, without requiring the court to consider
alternative enforcement measures.
FN1. Minnier v. Minnier (1946) 188 Misc 100, affd 275 App Div
995, affd 300 NY 656, 90 NE2d 900.
FN2. Campanella v. Campanella (1989, 2d Dept.) 152 AD2d 190.
FN3. Jud.L. s756.
FN4. Barreca v. Barreca (1980, 4th Dept.) 77 AD2d 793; Stevens
Plumbing Supply Co. v. Bi-County Plumbing & Heating Co. (1978) 94 Misc2d 456.
FN5. Jud.L. s770; Lobenthal v. Koehler, 129 AD2d 28.
FN6. Farkas v. Farkas (1994 1st Dept.) 201 AD2d 440;
Rosenblitt v. Rosenblitt, 121 AD2d 375.
FN7. Stempler v. Stempler (1994, 2d Dept.) 200 AD2d 733.
FN8. Hough v. Hough (1986, 3d Dept.) 125 AD2d 791.
FN9. Hickland v. Hickland (1977, 3d Dept.) 56 AD2d 978.
FN10. Passonno v. Passonno (1979, 3d Dept.) 73 AD2d 718; see
also Rosenblitt v. Rosenblitt, supra. contempt.
FN11. Jud L s772.
FN12. Jud L s770.
FN13. Jud L s772.
FN14. See FCA s453.
FN15. FCA s454(3).
FN16. Hoyt v. Pierce (1968, 3d Dept) 31 AD2d 582.
FN17. FCA s453.
FN18. FCA s453(a).
FN19. Rabasco v. Rabasco (1982, 2d Dept.) 88 AD2d 958.
FN20. Cardona v. Perez (1967, 1st Dept.) 28 AD2d 673.
FN21. Delaware County DSS o/b/o Manon v. Manon (1986, 3d
Dept.) 119 AD2d 940.
FN22. Campagna v. Hill, 53 AD2d 1050.
FN23. Schmerer o/b/o McElroy v. McElroy (1984, 2d Dept) 105
AD2d 840.
FN24. Porcelain v. Porcelain (1978) 94 Misc2d 891.
FN25. 86 NY2d 63 (1995).
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).
2/25/97 NYLJ 3, (col. 1)
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