State of New York
Supreme Court : County of Monroe

Petitioner,

For a judgment under Article 78
of the Civil Practice Law and Rules
in the nature of prohibition,

- against -

Index No. 2002/9316

Respondent.
_______________________________

This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

This case involves the Monroe County Child Support Enforcement Unit's interpretation of an order of Family Court assessing arrears. It also deals with the rather confused set of statutes and regulations concerning application of receipts over and above current support and a distinction drawn by the Monroe County unit and other similar bodies between administrative enforcement and enforcement through a judgment. Although issue was not formally joined on the merits, there are no factual issues to be decided, and the court therefore addresses the petitioner's motion for summary judgment.

The petitioner here is, it must be admitted, a "deadbeat dad". For some thirteen years he was able to avoid paying the support mandated in a 1987 divorce decree, and by the year 2000 his total arrears had come to more than $87,000. In that year the Support Enforcement Unit commenced an enforcement proceeding. The hearing examiner assigned to the case correctly determined that the older, six-year statute of limitations applied because of the date of the divorce. (For more recent decrees the statute of limitations is 20 years.) She granted judgment for approximately $47,000, the accrued arrears for the preceding six years, a period extending back to 1994.

No party contests the hearing examiner's calculations; the dispute arises over the distribution of funds collected by the unit. The hearing examiner distinguished between sums collected before and after the commencement of the enforcement proceeding. She ordered that payments made after the enforcement proceeding commenced be applied first to current support and then to the judgment principal. Payments made before the filing of the enforcement proceeding could be applied in any way the support unit chose. The hearing examiner also held that the statute of limitations barred reduction of the other arrears to judgment.

On the petitioner's appeal to Family Court, this order was modified to hold that all monies no matter when received would be applied first to current support and then to prior obligations, as set out in the governing regulations, 18 NYCRR § 347.13. The court understood itself to be modifying the hearing examiner's order in only one respect, stating that the prior order required the unit to comply with this regulation with respect to post-commencement collections. In addition, the court believed that the hearing examiner held all arrears more than six years old were uncollectible. The support unit had failed to appear before Family Court, filed a notice of appeal from this decision but did not perfect the appeal.

Family Court's decision and order does not reflect the provisions of the hearing examiner's order accurately. That order does not cite NYCRR and its provisions go beyond the regulations, which require only that payments over and above current support be treated as "amounts which represent payment on the required support obligation for previous months." While the hearing examiner's order is not inconsistent with this provision, the scheme ordered therein cannot be said to be the only possible way of applying excess amounts to prior accrued obligations. Further, and more germane to the present dispute, the hearing examiner had not stated that the pre-1994 arrears were uncollectible, only that the unit was "time-barred from requesting that arrears be established and reduced to judgment for the period 2/27/87 to 12/5/94."

The petitioner claims, without contradiction from the unit, that the $47,000 judgment is on the unit's books and accruing interest, while the pre-1994 arrears are listed as current support due. Funds are being applied first to the current month's support and then to the time-barred arrears, while the judgment continues unsatisfied. Petitioner seeks a judgment that the unit should not be collecting support arrears which have been determined to be uncollectible. In its reply, however, the unit points to an number of cases which hold that the statute of limitations defense does not prevent child support units from administrative enforcement of arrears no matter when incurred (see, e.g., Commissioner of Social Services v Gomez, 221 AD2d 39; Matter of Chopik v Suffolk Co. Department of Social Services, 160 AD2d 869; Matter of Catera v Suffolk Co. Support Collection Unit, 155 AD2d 663). It argues that statutes of limitations cut off remedies, not rights, and thus cannot affect the unit's powers to pursue the debtor through income deduction regardless of whether the arrears could or could not be reduced to a judgment.

Since those cases, however, the First Department has held that there can be no enforcement of arrears prior to the limitation period through any mechanism (Shavit v Shavit, 279 AD2d 180). Though this may be inconsistent with the earlier cases, it depends for its reasoning on an intervening Court of Appeals case, which had explicitly recognized the applicability of the statute of limitations for all forms of enforcement of support arrears:

The recipient of child support payments, however, is subject to a limitations period and, therefore, cannot delay enforcement indefinitely. Prior to 1987, the applicable period was six years unless the order had been reduced to judgment (see, Tauber v Lebow, 65 NY2d 596, supra). Tellingly, as part of the Support Enforcement Act of 1987, the Legislature extended the Statute of Limitations for all subsequent actions for support, alimony or maintenance to 20 years from the date of default, regardless of whether the arrears have been reduced to judgment (see, CPLR 211 [e]). (Dox v Tynon, 90 NY2d 166, 174).

The unit's position is not only inconsistent with the law as established in these recent cases; it was never in compliance with the orders governing this case. As explicitly stated by the hearing examiner, excess monies were to be applied to the principal of the judgment. Although the unit filed a notice of appeal, the appeal was never perfected. Though a stay of an appealed order would have been granted the unit under the right circumstances, it never applied for a stay. Regardless of overall principles, then, in this particular case the unit was bound by the regulations and the decisions. While the court has no sympathy for the petitioner's failure to meet his obligations both as a parent and as a citizen bound by the divorce decree, it finds the respondent's insistence on ignoring the clear directives of Family Court to be equally disturbing. Neither deadbeat dads nor collections units are above the law.

The petitioner is entitled to an order directing that all payments over and above current support, whenever collected, should be applied to the arrears judgment determined by Family Court. Insofar as the relief requested amounts to a declaratory judgment that the prior arrears are uncollectible through any means, the court hereby converts this proceeding into one for declaratory judgment and so holds. Counsel for petitioner may prepare an order, with costs.

DATED: Rochester, New York

September 27, 2002

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New york Law Journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

Design © 1997 Michael Steinberg. No copyright subsists in the decision texts, which are government documents.

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