NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7253 Revised 05/27/16
SPONSOR: Weinstein TITLE OF BILL:
An act to amend the domestic relations law, in relation to providing
additional enforcement mechanisms for collection of spousal or child
support
This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Matrimoni-
al Practice Advisory and Rules Committee.
This measure would amend D.R.L. § 245 to eliminate the requirement that
other enforcement remedies be exhausted before contempt can be sought
against a person who fails to pay child support, spousal support or
combined child and spousal support pursuant to a court order in a matri-
monial proceeding.
Even though Family Court and Supreme Court often have concurrent juris-
diction over support, the Family Court Act does not require a party to
exhaust remedies before asking for contempt for failure to pay support.
In contrast, D.R.L. § 245 expressly prohibits a party from seeking
contempt without first exhausting other remedies. To exhaust a remedy
can take months or even longer. For example, if a money judgment is
obtained for the amount due, it may take some months to enforce the
judgment. To exhaust every remedy could mean delay after delay for the
families who need the support for their immediate needs. This ability to
delay the case in Supreme Court works to the detriment of the non-monied
spouse, the custodial parent, and children while a divorce proceeding is
ongoing unless the Supreme Court refers the case to Family Court where
the exhaustion of remedies requirements do not apply or unless a party
seeks post-judgment relief in Family Court and not Supreme Court. It
allows parties who owe support to delay further, knowing that contempt
remedies for enforcement are a last resort.
Incarceration will continue to be a remedy of last resort. This measure
would not alter the court's current ability to utilize all remedies of
enforcement including setting a purge amount, income execution, money
judgment, requiring posting an undertaking and making an order of
sequestration, after a finding of contempt.
Inability to pay will continue to be a defense to a finding of contempt.
Furthermore, as required under existing law, indigent obligors defending
claims of contempt and possible imprisonment would continue to be enti-
tled to assigned counsel.
Such a measure was introduced in 2009-10 (A. 5979 (Weinstein), S. 2977
(Sampson)), which would have amended D.R.L. § 245 to delete the require-
ment for exhaustion of remedies and also amended D.R.L. § 243 to allow
the court to require posting of security to ensure payment of equitable
distribution awards as well as child and spouse support (see
http://www.assembly.state.ny.us/leg/?bn=A0579&term=2009). Although we
support the change to D.R.L. § 243 as well, we believe the amendment to
D.R.L. § 245 is of great significance. While we recognize that the
contempt remedy is not always effective, contempt is a powerful tool,
and there is no reason why the Supreme Court should not have the same
resources at its disposal as the Family Court.
This measure, which would have no fiscal impact upon the State, would
take effect immediately and apply to all actions whenever commenced as
well as all judgments or orders previously entered.
2015-16 LEGISLATIVE HISTORY:
Senate 5189 (Senator Bonacic) (Passed)
Assembly 7253 (M. of A. Weinstein) (reported referred to Codes)
STATE OF NEW YORK
________________________________________________________________________
7253
2015-2016 Regular Sessions
IN ASSEMBLY
April 29, 2015
___________
Introduced by M. of A. WEINSTEIN -- (at request of the Office of Court
Administration) -- read once and referred to the Committee on Judici-
ary
AN ACT to amend the domestic relations law, in relation to providing
additional enforcement mechanisms for collection of spousal or child
support
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 245 of the domestic relations law, as amended by
2 chapter 809 of the laws of 1985, is amended to read as follows:
3 § 245. Enforcement by contempt proceedings of judgment or order in
4 action for divorce, separation or annulment. Where a spouse, in an
5 action for divorce, separation, annulment or declaration of nullity of a
6 void marriage, or for the enforcement in this state of a judgment for
7 divorce, separation, annulment or declaration of nullity of a void
8 marriage rendered in another state, makes default in paying any sum of
9 money as required by the judgment or order directing the payment there-
10 of, [and it appears presumptively, to the satisfaction of the court,
11 that payment cannot be enforced pursuant to section two hundred forty-
12 three or two hundred forty-four of this chapter or section fifty-two
13 hundred forty-one or fifty-two hundred forty-two of the civil practice
14 law and rules,] the aggrieved spouse may make application pursuant to
15 the provisions of section seven hundred fifty-six of the judiciary law
16 to punish the defaulting spouse for contempt, and where the judgment or
17 order directs the payment to be made in installments, or at stated
18 intervals, failure to make such single payment or installment may be
19 punished as therein provided, and such punishment, either by fine or
20 commitment, shall not be a bar to a subsequent proceeding to punish the
21 defaulting spouse as for a contempt for failure to pay subsequent
22 installments, but for such purpose such spouse may be proceeded against
23 under the said order in the same manner and with the same effect as
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09887-01-5
A. 7253 2
1 though such installment payment was directed to be paid by a separate
2 and distinct order, and the provisions of the civil rights law are here-
3 by superseded so far as they are in conflict therewith. Such applica-
4 tion may also be made without any previous sequestration or direction to
5 give security [where the court is satisfied that they would be ineffec-
6 tual] or any application for enforcement by any other means. No demand
7 of any kind upon the defaulting spouse shall be necessary in order that
8 he or she be proceeded against and punished for failure to make any such
9 payment or to pay any such installment; personal service upon the
10 defaulting spouse of an uncertified copy of the judgment or order under
11 which the default has occurred shall be sufficient.
12 § 2. This act shall take effect immediately and shall apply to all
13 actions whenever commenced as well as all judgements or orders previous-
14 ly entered.
