119 Misc. 2d 874 | N.Y.C. Fam. Ct. | 1983
OPINION OF THE COURT
An issue of the constitutionality of section 449 of the Family Court Act, is raised on the instant motion by petitioner to disaffirm the hearing examiner’s report with respect to the amount and effective date of support.
A hearing was held the same day, April 22,1983, before the hearing examiner (Hon. Isidore Levine). At the conclusion of the hearing, the hearing examiner in his report recommended that respondent pay $50 per week for the support of his wife and child through the court to the Department of Social Services, effective April 22,1983, the date of the hearing and the first return date of process. He denied petitioner’s motion to have the support order made retroactive to the date the petition was filed, January 21, 1983, as required by section 449 of the Family Court Act. Petitioner filed objections to the hearing examiner’s report wherein it is asserted that the hearing examiner improperly concluded that section 449 of the Family Court Act is unconstitutional and that the more appropriate amount of weekly support is $70, not $50. The court took petitioner’s objections under advisement and directed that respondent be notified. By filing objections, petitioner moves to disaffirm the hearing examiner’s report. As that report and petitioner’s motion advance the question of constitutionality of section 449 of the Family Court Act, the Attorney-General of the State of New York was notified pursuant to CPLR 1012 (subd [b]) to afford him an opportunity to intervene in support of the statute’s constitutionality. He has declined to do so.
The court has reviewed the tape made of the proceedings before the hearing examiner and concludes that the
Regarding the effective date of the support order, petitioner urged that section 449 of the Family Court Act mandated that the order be made retroactive to the filing date of the petition, January 21, 1983, or, in the alternative, to the date process issued, to wit, March 3, 1983. The hearing examiner declared that retroactive support would not be directed because the summons and petition were returnable for the first time in court the day of the hearing, April 22, 1983. He stated that he disagreed with the statute (§ 449) and found it to be “wrong”.
Section 449 of the Family Court Act entitled “Effective date of order of support” provides: “Any order of support made under * * * [article 4 — support proceedings] shall be effective as the date of the filing of the petition therefor, and any retroactive amount of support due shall be paid in one sum or periodic sums, as the courts shall direct, to the petitioner, to the custodial parent or to third persons. Any amount of temporary support which has been paid shall be taken into account in calculating any amount of retroactive support due.” (Emphasis supplied.) The court is mindful that a “statute should not ordinarily be set aside as unconstitutional by a court of original jurisdiction unless such conclusion is inescapable”, that “[o]rdinarily a court will not pass on a constitutional question if there is any other way of disposing of the case” (McKinney’s Cons Laws of NY, Book 1, Statutes, § 150, subd a) and that “[e]very presumption will be indulged in to support and sustain legislation” (McKinney’s Cons Laws of NY, Book 1, Statutes, § 150, subd b).
. It is clear that the exercise of discretion to direct retroactive support was not itself justification for granting this relief. The “special circumstances” of the individual case presented the required justification.
As the support obligation arises at the time of marriage and the birth of a child, the Legislature may constitutionally mandate the general rule that an order of support be effective as of the date of the filing of the petition therefor. The legislative history of section 449 of the Family Court Act
The legislative memorandum in support of section 449 advances the following additional justification for mandatory imposition of retroactive support: “Under the present system of prospective support orders, the obligated spouse is rewarded for stalling the hearing and court determination of the amount to be paid.” However, as already noted, case law prior to promulgation of section 449, permitted the courts to fix retroactive support in such circumstances, i.e., where the respondent is guilty of culpable conduct warranting imposition of retroactive support. The “Fiscal Implications” section of the legislative memorandum in support of this statute also recites: “Retroactive support orders would save court time and public expense by penalizing intentional delay by the obligated spouse. In addition, the Department of Social Services could be reimbursed for support payments willfully withheld by a spouse who had the means to pay support. Thus, public assistance budgets could be reduced.” (Emphasis supplied.) This posits recognition that culpable conduct on a respondent’s part is the key to invoking fixation of retroactive support. Nevertheless section 449 is silent with respect to the factor of culpable conduct.
Despite observations in the legislative memorandum regarding culpable conduct, ability to pay and appropriate exercise of discretion, the statute embodies the philosophy of only one statement of that memorandum, to wit: “Since the support duty arises at the time of marriage and the birth of a child, the paying spouse is not prejudiced by a retroactive determination of the amount of this obligation.”
In a support proceeding where the person on whose behalf support payments are sought is the recipient of public assistance, the petitioner has the burden of proving that such person is the recipient of public assistance, that the respondent is charged under the statute with support of the recipient and that the respondent has sufficient financial ability to reimburse the Department of Social Services for payments made to the recipient (see Matter of Smith v Smith, 70 AD2d 938; Matter of Dumpson v Cembalist, 23 AD2d 647; see, also, Family Ct Act, § 415). It necessarily follows that petitioner herein bears the burden of demonstrating that respondent was possessed of sufficient financial ability to honor the support obligation during the period covered by the retroactive support request pursuant to section 449. In this latter respect petitioner is aided by the statutory presumption that respondent has sufficient means to support the spouse and children under the age of 21 years (Family Ct Act, § 437) which presumption is rebuttable by competent evidence.
Where there is no prior order of support outstanding, a respondent not having the opportunity to resort to self-help and not otherwise engaged in any culpable conduct must have the opportunity to demonstrate good cause for the canceling of any retroactive amount of support. Under these circumstances sections 449 and 458 must be read and applied in conjunction with one another. Retroactive support under section 449, if unpaid, constitutes arrears. From this fact and the preceding analysis, it may be inferred that discretionary power exists whereby the court in an appropriate case could properly declare that support be retroactive to a date other than the filing date of the petition or that support be prospective only. Form may not be exalted over substance, section 458 of the Family Court Act enti
Historically, the basic culpable conduct demonstrated by a respondent spouse or parent in refusing to honor the support obligation where possessed of the means or ability to earn such means justified a court direction enforcing that obligation prospectively. Additional factors of culpability such as dilatory or obstructive tactics in delaying the court determination or directive enforcing the support obligation served to justify the court’s ordering retroactive support to the date the action was commenced, in the exercise of discretion. While section 449 does not delineáte or distinguish these differing degrees of culpability, its silence in this regard may not be utilized to excuse the necessity for demonstrating the afore-mentioned basic culpable conduct on respondent’s part during the period for which retroactive support is sought.
It also appears that the “good cause” test while permitting support to be retroactive to a date other than the filing date of the petition or prospective only, would permit under appropriate circumstances the holding of retroactive support “in abeyance”. This latter directive is proper under circumstances where the court finds a basis for fixing retroactive support as directed by section 449, but concludes that directing payment forthwith in periodic sums, even in miniscule amounts, would work an undue hardship. This latter situation obtains where there is no prior outstanding support order, the court has fixed an amount of support which is clearly the maximum which the respondent can prospectively pay under the circumstances, respondent’s limited means and ability were fully taken into consideration in determining the prospective amount of support without regard to the retroactive mandate of section 449 and respondent has exhibited culpable conduct during the period for which retroactive support applies. The discretion as to when and in what amounts retroactive support shall be paid under section 449, appears to repose in the court the power to hold such support “in abeyance” when the circumstances so dictate, i.e., when such discretion may be appropriately exercised and not abused. Envisioning circumstances where miniscule periodic amounts of retroactive support are properly directed prompts the conclusion that such support may be held, when appropriate, in abeyance. Again, form may not be exalted over substance and the court must not be subjected to vain acts which exalt the letter of the law at the expense of its spirit. Consideration of the respondent’s ability to pay support under this hypothetical confronts the court with two alternatives: either to reduce the amount of prospective support so as to allow for payment toward retroactive support or to postpone the date of payment of retroactive support by holding such support in abeyance. Section 449 of the Family Court Act is silent as to when the payment(s) of retroactive support must be made.
As already noted, undue delay in the prosecution of the support proceeding, prior to enactment of section 449,
To reiterate: section 449 is constitutional in that it is based upon the continuing nature of the obligation of support and fixes, as a general proposition, the date of the filing of the support petition as the date from which petitioner seeks to impose court recognition and determination of that obligation in accord with the statutory requirements delineated in the Family Court Act. Support proceedings under article 4 in the Family Court are commenced by the filing of a petition (Family Ct Act, § 423) whereas “[generally a civil proceeding in New York State commences with service of a summons on the defendant [CPLR 304 (1963)].” (Besharov, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Supp Pamph, 1976-1982, Family Ct Act, § 423, p 127). A matrimonial action in the Supreme Court commences with service of the summons on the defendant thereby affording notice of the institution of the action. In the Family Court, the support proceeding commences with filing of the petition which does not afford notice to the respondent. Notice is subsequently effected when process is issued and served in the proceeding. No constitutional equal protection claim arises because the obligation to support is a continuing one which arises upon the marriage of the spouses or the birth of a child. The right to support is inchoate until aid of the court is sought (cf. Fuller v Galeota, 271 App Div 155; see Pickering v Pickering, 58 AD2d 1039). In light of the constitutionality of section 449, the hearing examiner in this proceeding improperly excluded consideration of retroactive support, albeit he apparently was motivated by concern for constitutional application of the statute. The presumption of sufficient means on respondent’s part to support his spouse and child (Family Ct Act, § 437) as it relates to the period encompassed by the retroactive support is rebuttable by competent evidence. Further, in imposing retroactive support under section 449, the court must determine whether to direct a lump-sum payment or periodic payments. The parties are entitled to advance
The hearing examiner’s report is confirmed insofar as the amount of weekly support is concerned and the matter is set down for a hearing on the issues pertaining to retroactive support in accordance with the aforesaid in Part VI on July 20, 1983.
. Only one appellate determination has come to the court’s attention respecting section 449 of the Family Court Act (Matter of Kwit v Kwit, 91 AD2d 1175). In that case the Fourth Department issued a memorandum decision, which contains reference to the terms of section 449. No analysis of the statute in terms of its application or constitutionality was presented.
. Section 449 of the Family Court Act is the subject of Senate Bills Nos. 4568-A and 4572 and Assembly Bill No. 3869-B. Senate Bill No. 4568-A is identical to Assembly Bill No. 3869-B which was enacted as chapter 695 of the Laws of 1981. The legislative background of section 449 is contained in the supporting memoranda of these respective bills.
. Section 460 of the Family Court Act was amended by chapter 645 of the Laws of 1980 to reflect that the court “shall make an order directing the entry of judgment for the amount of * * * arrears, together with costs and disbursements unless the defaulting party shows good cause for failure to make application for relief from the judgment or order directing such payment prior to the accrual of such arrears.” (Emphasis supplied.) Prior to this amendment, the statute directed that the court “may make” such order. Apparently as the result of concern with the previous wide discretion granted the Family Court in disposing of requests for arrears, the Legislature removed the cancellation of arrears where a party is in default with respect to a support order “from the discretion of the court, absent a showing of ‘good cause’ by the respondent for having failed to seek prospective relief.” (Matter of Huttenlocker v Damstetter, 111 Misc 2d 484,486.) It is clear that self-help or some form of culpable conduct on respondent’s part amounting to a lack of good cause for failure to seek relief from the court-ordered support impels the entry of judgment for the arrears arising by virtue of said respondent’s default(s) in paying the support previously directed. The message of sections 458 and 460 is that a respondent confronted by the continuing obligation of court-ordered support may not simply refuse to pay that support in whole or in part for any reason but must seek prior court sanction for such conduct, or, failing to seek such approval, must advance good cause for that failure.