OPINION OF THE COURT
In thе appeal before us, support payments deducted weekly from respondent father’s wages pursuant to a payroll deduction order were appаrently embezzled by the office manager and cannot be recovered from the employer. We are asked to determine, as between two parties not invоlved in the misappropriation, who must bear the loss — respondent, from whose salary weekly deductions were made, or his family, who did not receive this money. We conсlude that respondent’s support obligation was not discharged when the weekly deductions were made by his employer, and that his responsibility to contribute to the suppоrt of his family requires that he, and not the family, suffer the consequence of such a loss.
Respondent, Sam Szigyarto, failed to comply with an order of support in favor of аppellant, Ileana Szigyarto, and their two minor children. After respondent defaulted on three consecutive support payments, the court in September 1980 entеred a payroll deduction order pursuant to Personal Property Law § 49-b, requiring respondent’s employer to withhold $70 from his weekly wages and transmit that sum to the court.
Before the Family Court on respondent’s application to modify, both sides centered their arguments on the legal issue of whether the employer’s withhоlding discharged the support obligation. Respondent urged, first, that by obtaining a payroll deduction order and thereby divesting him of control over these funds appellant in effеct made his employer her agent and, second, that under statutory and case law the deductions terminated his obligation, citing CPLR 5231, Matter of Franklin Natl. Bank v Lynch (
Recognizing the substantial public, as well as private, interest in enforcing compliance with support orders, the Legislature in 1958. supplemented available enforcement procedures (see, e.g., 12 Zett-Edmonds-Buttrey-Kaufman, NY Civ Prac, Family Ct Proceedings H 15.12, p 15-106; Family Ct Act §§ 454, 457, 471; Domestic Relations Law §§ 243-244) with a streamlined mechanism for securing delinquent payments directly from a support debtor’s employer through automatic salary deductions (see, Personal Property Law § 49-b, L 1958, ch 659, § 1). By subsequent amеndments, the Legislature added further force to this
Personal Property Law § 49-b permits a court which entered a support order, upon a showing of good cause and without the need again to serve process on the support debtor, to order an employer to withhold from wages — even including pension funds — those amounts the court finds necеssary for compliance with its order, as well as arrears. A prima facie case is established by proof that the party charged with support is delinquent in three pаyments, and unless the presumption is overcome through proof of the debtor’s inability to make the payments the court must order an appropriate payroll deduction (Personal Property Law § 49-b [1] [a]; see generally, Involuntary Wage Assignments: A New Approach for Effective Enforcement of Support Obligations, 11 Buffalo L Rev 396). The debtor’s employer is then obligated to withhold the designated sums from its employee’s salary and to transmit the deducted amounts directly to the agency designated by the court (see, Personal Property Law § 49-b [1] [b]). The Legislature has further underscored the primacy of family support orders by specifying that a wage assignment under section 49-b takes priority over other assignment or garnishment of moneys due or payable, except those mandated by law (Personal Property Law § 49-b [2]; see also, Comment, Wage Garnishment in New York State: Practical Problems of the Employer, 34 Alb L Rev 395, 415-18).
Given this background and the absence of any authority so requiring, we must reject the conclusion reached below that respоndent’s support obligation was extinguished when the payroll deductions were made. While, as the Family Court concluded, it may be that funds subject to a payroll deduction order, once withheld, are not considered wages belonging to respondent, they are not thereby rendered support money belonging to appellant so as to discharge respondent, until payment is made. Contrary to respondent’s assertion, Personal Property Law § 49-fa does not constitute the employer appellant’s “agent” so as to bind her and discharge him; and it creates no express trust for her in the withheld funds (see, e.g., Tax Law § 675; Social
While resting its decision on the legal issue, Family Court added as a final point that, were respondent to invoke the defense оf estoppel or laches, recovery would be barred by appellant’s inaction and resultant prejudice to respondent. Appellant urges that respоndent’s failure to raise any such defense at trial deprived her of the opportunity to demonstrate its inapplicability. Since respondent did not raise estopрel or laches as a defense before the trial court, where the facts pertinent to such a defense might have been established, he cannot press it on appeal. We therefore do not reach the issue of whether such defenses, if properly raised, would have defeated appellant’s right to receive the payments.
Accordingly, the order of the Appellate Division should be reversed and respondent’s application to modify the support order to excludе the disputed payments denied.
Chief Judge Wachtler and Judges Jasen, Meyer, Simons and Alexander concur.
Order reversed, with costs, and respondent’s application to modify the support order to exclude the disputed payments denied.
Notes
The relative financial needs and abilities of the parties — factors