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LAW AND THE FAMILY

Direct Enforcement of Support Orders Under UIFSA

Joel R. Brandes

New York Law Journal
June 22, 1999

THE UNIFORM INTERSTATE Family Support Act (UIFSA), in effect since Jan. 1, 1998, as Article 5-B of the Family Court Act (FCA), provides that a support order issued by a tribunal of another state may be registered in New York for enforcement.1

A registered support order is enforceable immediately, unless the respondent files a written objection within 20 days after its service and the objection is sustained.2 A party contesting the validity or enforcement of a registered order, or seeking to vacate the registration, has the burden of proving his defense. UIFSA specifies that the following are valid defenses:

 the issuing tribunal lacked personal jurisdiction over the contesting party;

 the order was obtained by fraud;

 the order has been vacated, suspended or modified by a later order;

 the issuing tribunal has stayed the order pending appeal;

 there is a defense under New York law to the remedy sought;

 full or partial payment has been made; or

 the statute of limitations under FCA §580-604 precludes enforcement of some or all of the arrearage.3

Ukrainian Writ

In Matter of Taukatch v. Taukatch,4 the Family Court rejected a challenge to the registration of a Ukrainian Execution for Child Support, which was registered for enforcement pursuant to FCA §580-602. On April 29, 1998, a court in Kiev issued a "writ" whereby the respondent was directed to pay "one third of all earnings, monthly, starting [Jan.] 30, 1998, until [the children] become adults."

The writ was registered on Sept. 11, 1998, and the respondent was served with written notice of the registration on the same day. He filed a challenge to the registration on Oct. 2, 1998, asserting that the document the petitioner sought to register was unenforceable, because it was issued by the Ukrainian court and not properly certified for use outside the Ukraine and because the Ukraine and the United States had no agreement regarding reciprocal child support enforcement obligations; therefore, the writ could not be enforced in the United States without the proper certification.

Respondent also argued that the petitioner was not the proper person to issue an execution under Ukrainian law, and that the writ was not ripe for enforcement. He also challenged the calculation of the arrears under the order and asserted that, because the Ukrainian court maintains exclusive jurisdiction over the proceeding to dissolve the marriage, the writ was not ripe for enforcement as a support order.

In rejecting all of these arguments, the Family Court found that the writ was a support order within the meaning of FCA §580-101(21), which provides that "support order" means a judgment, decree or order, whether temporary, final or subject to modification, for the benefit of a child, a spouse or a former spouse, which provides for monetary support, health care, arrearages or reimbursement and may include related costs and fees, interest, income withholding, attorney's fees and other relief.

A Prime Goal

Here the writ was on its face a court order, which provided for monetary support for the benefit of the parties' children, and stated that "The court's decision goes into effect or to be carried out immediately." The court found that reciprocity of laws between the initiating and the enforcing jurisdiction was not required to enforce a child support order under UIFSA. A responding state should enforce the child support obligation of another state irrespective of that state's law. Tolerance of the laws of other states and nations, in order to facilitate child support enforcement, is a prime goal of the act.

Under FCA §580-101 (19), "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to United States jurisdiction. The term includes an Indian tribe; and a foreign jurisdiction that has enacted a law or established procedures for the issuance and enforcement of support orders that are substantially similar to the procedures under the Uniform Reciprocal Enforcement of Support Act, (or the Revised Uniform Reciprocal Enforcement of Support Act).

UIFSA also provides for two direct enforcement procedures that do not require assistance from a tribunal. First, the support order may be sent directly to the obligor's employer in another state, which triggers wage withholding by that employer without a hearing, unless the employee objects. Second, UIFSA provides for direct administrative enforcement by the support enforcement agency of the obligor's state. FCA §580-101(6) defines an "income withholding order" as an order or other legal process directed to an obligor's employer or other income payor, as defined by Civil Practice Law and Rules §§5241 or 5242, to withhold support from the income of the obligor.5

Article 5-B of the Family Court Act permits an income withholding order issued in another state to be sent to the obligor's employer6 without first filing a petition or comparable pleading or registering the order with a tribunal of this state.7

Upon the receipt of an income withholding order, the obligor's employer is required to immediately provide a copy of the order to the obligor.8 The employer must treat another state's income withholding order that appears regular on its face as if it had been issued by a tribunal9 of this state.10

Except as otherwise provided in FCA §§580-502 (d) and 580-503, the employer must withhold and distribute the funds as directed in the order. The order must specify the duration and amount of periodic payments of current child support, stated as a sum certain; the person or agency designated to receive payments and the address to which the payments are to be forwarded; medical support, as periodic cash payment stated as a sum certain or ordering the obligor to provide health insurance coverage for the child under a policy available through the obligor's employment; the amount of periodic payments of fees and costs for a support enforcement agency, the issuing tribunal and the obligee's attorney, stated as sums certain; and the amount of periodic payments of arrearages and interest on arrearage, stated as sums certain.11

An employer must comply with the law of the state of the obligor's principal place of employment. This applies to income withholding with respect to the employer's fee for processing an income withholding order; the maximum amount permitted to be withheld from the obligor's income; and the times within which the employer must implement the withholding order and forward the child support payment.12

The law of the state of the obligor's principal place of employment governs the priorities for withholding and allocating income for multiple child support obligations. If an obligor's employer receives multiple income withholding orders for the same obligor, the employer satisfies the multiple orders if it complies with the law of the state of the obligor's principal place of employment for establishing the withholding and allocation priorities for multiple child support obligations.13

An employer who complies with an income withholding order issued in another state, in accordance with Article 5-B of the FCA, is not subject to any civil liability resulting from withholding child support from the obligor's income.14

Willful Failure

An employer who willfully fails to comply with an income withholding order issued by another state and received is subject to the same penalties that may be imposed for noncompliance with an order issued by a tribunal of this state.15 This is more powerful than current law. CPLR §5241 provides that an employer or income payor is liable to the creditor for failure to deduct the amounts specified. If such person fails to pay the creditor, the creditor may commence a proceeding against him for accrued deductions, together with interest and reasonable attorneys' fees.16

An obligor has the right to contest the validity or enforcement of an income withholding order issued in another state and received by an employer in New York as if the order had been issued here.17 The procedure for challenging such orders is the same as in CPLR §§5241 and 5242.18 FCA §580-604 applies.19 The CPLR provides that before the income execution can be served on the income payor or employer and a levy made, a copy of the execution must be served on the debtor by regular mail at his last known residence or where he is likely to receive notice. It may also be served in the same manner as a summons.20

A "mistake of fact" is defined in the CPLR as an error in the amount of current support or arrears, in the identity of the debtor or that the order of support does not exist or has been vacated.21 The procedure for asserting mistake of fact objections is uniform in the Family and Supreme Courts.22

If the income execution has been issued by the Support Collection Unit, the debtor may assert a mistake of fact objection and have an opportunity to submit it to the Support Collection Unit within 15 days from service of a copy thereof. Where the income execution has been issued by an attorney, as an officer of the court, or by the sheriff or by the clerk of the court, the debtor may assert a mistake of fact objection within 15 days from service of a copy of the income execution by application to the Supreme or the Family Court.

The obligor is required to give notice of the contest to the support enforcement agency providing services to the obligee; each employer that has directly received an income withholding order; and the person or agency designated to receive payments by the income withholding order or, if no person or agency is designated, to the obligee.23

A party seeking to enforce a support or income withholding order issued by a tribunal of another state may also send the documents required to register it with a support enforcement agency24 of this state.25 The Department of Social Services is the appropriate support enforcement agency.26 On receipt of the documents the agency, without initially seeking to register the order, must consider and use any appropriate administrative procedure authorized by New York law to enforce a support or income withholding order.

If the obligor does not contest administrative enforcement, the order need not be registered. If the obligor contests its validity or administrative enforcement, the support enforcement agency must register the order pursuant to FCA Article 5-B.27

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Notes

(1) FCA §580-601.

(2) See FCA §580-603 and §580-607.

(3) FCA §580-607.

(4) New York Law Journal, Jan. 19, 1999, p. 30, col.2, (Fam.Ct. 1999).

(5) FCA §580-101 (6).

(6) The statute authorizes sending it to the person or entity defined as the obligor's employer under CPLR §5241.

(7) FCA §580-501.

(8) FCA §580-502(a).

(9) In New York, orders issued by tribunals can be either under CPLR §5241 or §5242, because "Tribunal" is defined to mean a court, administrative agency or quasi-judicial entity authorized to establish, enforce or modify support orders. See FCA §580-101(22). "Quasi-judicial entity" should include an attorney as an officer of the court and the clerk of the court.

(10) FCA §580-502(b).

(11) FCA §580-502(c).

(12) FCA §580-502(d).

(13) FCA §580-503.

(14) FCA §580-504.

(15) FCA §580-505.

(16) CPLR 5241 (g);

(17) FCA §580-506.

(18) See CPLR §§5241 and 5242.

(19) FCA §580-506 (a).

(20) CPLR §5241 (c)(4); CPLR §5241 (d).

(21) CPLR §5241 (a)(8).

(22) CPLR §5241(e).

(23) FCA §580-506 (b).

(24) FCA §580-101 (20) provides that "support enforcement agency" means a public official or agency authorized to seek: (i) enforcement of support orders or laws relating to the duty of support; (ii) establishment or modification of child support; (iii) determination of parentage; or (iv) to locate obliger's or their assets.

(25) FCA §580-507(a).

(26) See SSL §111.

(27) FCA §580-507(b).

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Joel R. Brandes has law offices in Garden City and New York City. He co-authored the nine-volume Law and the Family New York and Law and the Family New York Forms (both, published by Westgroup). Bari B. Brandes, Emory University School of Law, Class of 1998, assisted in the preparation of this article.