Family Law Review, Vol. 28, No. 1
Notes & Comments
Elliot D. Samuelson,* Editor
The Suspension of Licenses as an EnforcementTool to Collect Support Arrears
Any matrimonial lawyer who has done a fair amount of enforcement work has one or more clients who is presently owed monies for arrears of either maintenance, child support or both. Those clients throughout the state have become increasingly frustrated by their attorney's inability and the court's reluctance to hold their errant spouses guilty of contempt of court for failure to make timely payments of their support obligations.
Apart from contempt, the resort to money judgments has been the major tool utilized by litigants in their attempt to enforce arrears. Unfortunately, unless a spouse has visible assets, the granting of a money judgment is, to a large extent, an ephemeral tool. Even before a money judgment for arrears is granted, a spouse who is intent upon avoiding his legal obligation will take steps to transfer ownership of any real or personal property to a third party. The third party is a straw nominee who has paid no consideration for the transfer. Although the spouse seeking arrears is not without remedy in such a situation, an action to set aside the transfer upon the ground that it was made in fraud of creditors is not only time consuming but costly. The reluctance of the courts to grant motions for contempt and impose what amounts to a penal or punitive sanction is, in some regard, understandable, but does not furnish any solace to a stay‑at‑home spouse who is obliged to make a home for his or her children without the aid of support monies awarded by the court. Such difficulties of enforcement compound a client's sense of abandonment.
The courts, in applying these new sanctions, are urged not to consider them as a substitute for, nor a reason to deny, an application to punish a spouse for contempt who has willfully accumulated support arrears.
It was perhaps this very dilemma that encouraged the Legislature to enact Domestic Relations Law §§ 244‑b and 244‑c as a measure to improve enforcement remedies to collect arrears where contempt has not, or can not, be granted. Case law requires the exhaustion of all other remedies which would include, inter alia, money judgments, sequestration and security before applying for a contempt motion (Although it remains to be seen, some might now argue that the mandate to exhaust all remedies may include these very sections, but it does not appear likely that such argument will prove successful).
Domestic Relations Law §§ 244‑b and 244‑c provide that accumulated support arrears must be equivalent to or greater than the current support due for a period of four months, e.g., $1,000 a month support would require arrears of at least $4,000 before a litigant could take advantage of either statute. Arrears accruing while the motion is pending will not be considered. Each section should be reviewed independently. Section 244‑b applies solely to the suspension of New York drivers' licenses while Section 244‑c affects business and professional licenses issued in New York.
To grant relief under either provision, the court must first be satisfied by competent proof that the respondent has accumulated support arrears for the four month period and only then may it consider directing the Department of Motor Vehicles to suspend the respondent's driving privileges, or require a licensing agency to commence suspension proceedings. What constitutes competent proof will be left to the sound discretion of the trial court ‑ it is not defined. The statute gives the court broad powers, and the provision is not mandatory. The operative word is may, not shall. Once the court's discretion is favorably exercised, the respondent may obtain an additional reprise by applying to the Department of Motor Vehicles for a restricted use license pursuant to § 530 of the Vehicle and Traffic Law. This section provides, in part:
A person whose driving license or privilege of operating a motor vehicle in this state has been heretofore suspended . . . and for whom the holding of a valid license is a necessary incident to his employment, business, trade, occupation or profession, or to his travel to and from a class or course at an accredited school, college or university or at a state approved institution of vocational or technical training may thereafter apply for and may be issued a restricted use license or if the holder of license issued by another jurisdiction valid for operation in this state, a restricted use privilege of operating a motor vehicle in this state as provided herein.
This provision will certainty lessen the effect of the suspension of one's driving license and render the enforcement remedy less threatening, since the offending spouse may be able to use the automobile for limited business or educational purposes during the suspension period. However, it is believed that once the Commissioner of Motor Vehicles receives such applications in cases stemming from the enforcement of arrears for maintenance and child support, the applications will be routinely denied. It must be borne in mind that the errant spouse is the one responsible for these arrears and should not be heard to complain, nor receive the sympathy of the Commissioner.
In a search for fairness, the statute also gives the opportunity to the spouse in arrears once he or she makes payment of all or part of the arrears to reapply to the judge in Supreme Court who issued the suspension order, and request that the court direct the Department of Motor Vehicles to terminate the suspension of respondent's driving privileges. A hearing will be required if payment is disputed.
Both statutes contain exclusions which will forbid its use upon low income recipients, i.e., persons receiving public assistance or supplemental security income, and persons defined as low‑income recipients under Section 240 of the Domestic Relations Law.
Section 244‑c, which applies to the suspension of professional and business licenses, contains almost identical language. Once a finding is made by a Supreme Court justice to implement this provision of the law, the court must then order the board, department, authority or office issuing the license in New York to commence proceedings for its suspension. The statute confers no authority, nor does the court have any power to do so. If the matter is referred to an agency for suspension proceedings, that agency must then inform the court of the action it has taken pursuant to the court's direction.
The license holder is not without remedy, and pursuant to sub. (b) of Section 244‑c can utilize an effective defense. If the spouse in arrears can demonstrate that the suspension creates extreme hardship to either himself or herself or to a person whom he or she serves (such as patients, clients, customers or the like), the court may suspend its initial order directing commencement of suspension proceedings to the licensing entity for a period not to exceed one year. This will require a plenary hearing to determine whether an undue hardship exists. If extreme hardship is demonstrated at the time an application for suspension is made, then the court may postpone the sus‑pension application for a maximum of a year, provided the errant spouse remains in full compliance with his or her current support obligation. If not, the court may rescind its order to postpone notifying the licensing entity of its change of heart. The statute is difficult to interpret and quite convoluted. It requires carefully study.
Although the language of the statute requires refinement, it is nonetheless a first tool available to help enforce arrears where traditional remedies have proved to be ineffectual. But it is not a strong enough measure. Unfortunately, although well‑intentioned, it is a conditional remedy. Its analysis becomes cumbersome and at times hardly discernible. It cries out for revision if it is to be a strong tool for the enforcement of support arrears. The following amendment to the preamble might be adopted to make the statute more workable.
Where payment of maintenance or child support is in arrears for a period of thirty or more days, the court shall, upon application of a party receiving support, and upon receiving competent proof of such arrears, (1) direct the Commissioner of Motor Vehicles to suspend the driver's license of the party in arrears of support payment, or (2) direct any other licensing agency to commence suspension proceedings forthwith (emphasis added).
*Mr. Samuelson is a partner in the Garden City firm of Samuelson, Rieger & Yovino.