Congratulations! You’ve just won a major case in which the court has rendered a decision giving your client a large support award. Both you and your client are ecstatic over the award and the magnitude of the same. Then your client asks you that all important question: What do we do now?
The initial reaction of many an unwary practitioner would be to provide a simplistic response that at first blush would appear to be very logical and perceptive, namely: we’ll serve a copy of the order containing the support award upon the other spouse (partner) and wait briefly for the periodic monies to begin arriving. It is only after a period of time elapses and those periodic payments fail to arrive (or cease to continue to arrive) that the extent and complexity of the dilemma begins to be realized; and that unsettling sense of panic is first experienced. Then, after considering the viable alternatives that exist, it is concluded that the appropriate approach is to initiate an enforcement proceeding in order to compel the noncompliant spouse (partner) to honor the financial commitment the court has previously directed.
Unfortunately, however, upon crossing the threshold into this important venue, a world of inconsistency and unpredictability is visited and experienced.
Enforcement proceedings obviously provide for a wide variety of sanctions, which vary from a stern warning from the court, to an order directing payment of the support award to a court endorsed agency,1 to the sequestration of property,2 to an income deduction order,3 to a judgment for arrears in support,4 and to the interception of income tax refunds. Also available for implementation is an order suspending a party’s professional license, driving privileges, and motor vehicle registration. The most drastic sanction, however, is an order directing the imprisonment of the noncompliant party for contempt.5 Yet, as effective as such an order may be, it is not a remedy that is recognized or utilized by all states.6 Further, even where an order of support is issued by a state court, it is frequently not recognized by sister states for enforcement purposes.
It is clearly recognized that the remedy of contempt is an extreme remedy that should be applied only in limited but justified circumstances. In that regard, however, it is frequently the only remedy that is compelling in nature and successful in its intended goal. Further, and all too often, due to the drastic consequences associated with the incarceration of the recalcitrant spouse (partner), courts are reluctant to impose this remedy even when warranted. The result is that the arrears in support continue to accrue; and the defaulting party experiences an unbridled sense of freedom in the belief that he (she) can continue to ignore the order of the court without any repercussions being suffered. The impact upon the victim of this pernicious and insidious course of conduct can be devastating. The consequences of noncompliance with the court order for support are further compounded when the defaulting party becomes transient and ventures beyond the boundaries of the state in which the order was issued.
The State of New York has previously recognized the severity of this legal malignancy and convened a task force to investigate the nature and extent of this tragic practice on the part of noncompliant parties. The report of the commission recommended what was obviously needed: namely, stricter enforcement of matrimonial orders. However, little, if anything, has been done since the time of that report to implement its findings. The consequence has been that discretionary enforcement of court orders continues to exist; and that discretion has been exercised in an indiscriminate and inconsistent manner.
The frustrated victim and family members continue to suffer untold financial hardship. The noncompliant party continues to enjoy the fruits of noncompliance and the benefit of unfettered freedom.
It is respectfully submitted that concrete, affirmative, and meaningful action must be taken to remedy the pervasive injustice caused by the intentional disregard and avoidance of court-issued support orders. This action must be taken and implemented without any further delay. A firm approach is needed. Consistency in the application of appropriate guidelines is required. Cooperative uniformity in the enforcement of support orders between the states is essential; and in that regard, it is suggested that action be undertaken immediately to develop, establish, and implement a uniform law to be adopted by the states across our great nation that will address all of the issues necessary to effectively create certainty, predictability, and reliability in the interstate enforcement of support orders by means of contempt proceedings. The noncompliant party must be held accountable for the wrongful conduct wherever that party may be.
It is further submitted, however, that in establishing appropriate guidelines, care should and must be taken to ensure that it is only the party who intentionally, willfully, and knowingly violates the obligation to provide support is subjected to the rigors of a finding of contempt with its associated consequence of incarceration. In that regard, it is submitted that the practice of imputing income to a noncomplying party for purposes of the contempt proceeding should be sparingly utilized. The imputation of income is inconsistent with a finding of intentional and willful conduct except in rare circumstances. The imputation of income in contempt proceedings provides fertile grounds for the potential of unjust and inappropriate findings. The sanction to be imposed must fit the offense. The offense should not be judicially adjusted to accommodate the sanction.
The time is now. The need is immediate. The states must take the initiative to address the uniform enforcement of support orders in matrimonial proceedings especially in the borderless parameters of the mobile society that currently exists. The ill-intentioned noncompliant offender must no longer be permitted to roam free. The wrongdoer must be held accountable for the wrongful conduct wherever and whenever he (or she) is found. Justice must prevail.
1. New York Social Services Law § 111-g; Texas Statutes § 152.1752.
2. Texas CP. Code Ann. § 31.002; New York Domestic Relations Law § 241; Holtzman v. Holtzman, 401 F. Supp. 520 (1975).
3. Illinois Statute § 13.1; New York Civil Practice Law and Rules § 5242.
4. New York Civil Practice Law and Rules § 5210; New York Domestic Relations Law § 244; Cohn v. Cohn, 208 A.D.2d 885 (1994).
5. New York Family Court Act § 454; New York Domestic Relations Law § 245; Texas CP Code Ann. § 31.002(c); California Code of Civil Procedure § 128; California Penal Code § 166.
6. See 24 Am. Jur. 2d, Divorce and Separation, § 798.