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Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
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|---|---|
| Mar 11, 2020 |
referred to judiciary delivered to assembly passed senate |
| Feb 03, 2020 |
advanced to third reading |
| Jan 29, 2020 |
2nd report cal. |
| Jan 28, 2020 |
1st report cal.300 |
| Jan 08, 2020 |
referred to judiciary returned to senate died in assembly |
| Jun 05, 2019 |
referred to judiciary delivered to assembly passed senate |
| Jun 04, 2019 |
advanced to third reading |
| Jun 03, 2019 |
2nd report cal. |
| May 30, 2019 |
1st report cal.1071 |
| May 21, 2019 |
referred to judiciary |
Senate Bill S6168
2019-2020 Legislative Session
Relates to agreements and stipulations of child support
download bill text pdfSponsored By
(D, WF) 47th Senate District
Archive: Last Bill Status - In Assembly Committee
- Introduced
-
- In Committee Assembly
- In Committee Senate
-
- On Floor Calendar Assembly
- On Floor Calendar Senate
-
- Passed Assembly
- Passed Senate
- Delivered to Governor
- Signed By Governor
Actions
Votes
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Floor Vote: Mar 11, 2020
aye (58)- Addabbo Jr.
- Akshar
- Amedore
- Bailey
- Benjamin
- Biaggi
- Borrello
- Boyle
- Brooks
- Carlucci
- Comrie
- Flanagan
- Funke
- Gallivan
- Gaughran
- Gianaris
- Gounardes
- Griffo
- Harckham
- Helming
- Hoylman-Sigal
- Jackson
- Jacobs
- Jordan
- Kaminsky
- Kaplan
- Kavanagh
- Kennedy
- Krueger
- LaValle
- Lanza
- Little
- Liu
- Martinez
- May
- Mayer
- Metzger
- Montgomery
- Myrie
- O'Mara
- Ortt
- Parker
- Persaud
- Ramos
- Ritchie
- Rivera
- Robach
- Sanders Jr.
- Savino
- Sepúlveda
- Serino
- Serrano
- Seward
- Skoufis
- Stavisky
- Stewart-Cousins
- Tedisco
- Thomas
excused (4)
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Floor Vote: Jun 5, 2019
aye (62)- Addabbo Jr.
- Akshar
- Amedore
- Antonacci
- Bailey
- Benjamin
- Biaggi
- Boyle
- Breslin
- Brooks
- Carlucci
- Comrie
- Felder
- Flanagan
- Funke
- Gallivan
- Gaughran
- Gianaris
- Gounardes
- Griffo
- Harckham
- Helming
- Hoylman-Sigal
- Jackson
- Jacobs
- Jordan
- Kaminsky
- Kaplan
- Kavanagh
- Kennedy
- Krueger
- LaValle
- Lanza
- Little
- Liu
- Martinez
- May
- Mayer
- Metzger
- Montgomery
- Myrie
- O'Mara
- Ortt
- Parker
- Persaud
- Ramos
- Ranzenhofer
- Ritchie
- Rivera
- Robach
- Salazar
- Sanders Jr.
- Savino
- Sepúlveda
- Serino
- Serrano
- Seward
- Skoufis
- Stavisky
- Stewart-Cousins
- Tedisco
- Thomas
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Jan 28, 2020 - Judiciary Committee Vote
S616814Aye0Nay1Aye with Reservations0Absent0Excused0AbstainedMay 30, 2019 - Judiciary Committee Vote
S616813Aye0Nay1Aye with Reservations0Absent1Excused0Abstained -
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2019-S6168 (ACTIVE) - Details
- Current Committee:
- Assembly Judiciary
- Law Section:
- Family Court Act
- Laws Affected:
- Amd §413, Fam Ct Act; amd §240, Dom Rel L
- Versions Introduced in 2021-2022 Legislative Session:
-
S7077
2019-S6168 (ACTIVE) - Sponsor Memo
BILL NUMBER: S6168
SPONSOR: HOYLMAN
TITLE OF BILL: An act to amend the family court act and the domestic
relations law, in relation to agreements and stipulations of child
support
This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Family
Court Advisory and Rules Committee.
Section 413(1)(h) of the Family Court Act and section 240(1-b)(h) of the
Domestic Relations Law provide three important protections for children
when their parents enter into agreements and stipulations for the
payment of child support. Such agreements and stipulations must state
that the parties were advised of the provisions of the Child Support
Standards Act (CSSA), and that the "basic child support obligation"
(application of the CSSA percentages to the parties' combined parental
income) would "presumptively result in the correct amount of child
support to be awarded." Where an agreement or stipulation varies from
the basic child support obligation, a statement also must be included as
to what the presumptive amount would have been and why deviation from
that amount is appropriate. These protections are not waivable by the
parties or their attorneys. All four Judicial Departments have held that agreements not in compliance with these requirements are invalid and unenforceable. See David v. Cruz, 103 A.D.3d 494 (1st Dept., 2013); Jefferson v. Jefferson, 21 A.D.3d 879 (2nd Dept., 2005); Spooner v. Spooner, 154 A.D.3d 1158 (3rd Dept., 2017); Panzarella v. Panzarella, 106 A.D.3d 1527 (4th Dept., 2013). However, they have not agree d on the procedures to be followed and the remedies for noncompliance with these requirements. The instant measure would fill this gap. This measure would amend both Family Court Act § 413(1)(h) and Domestic Relations Law § 240(1-b)(h) to provide that if an agreement or stipu- lation fails to comply with any of the three provisions of the CSSA, the non-CSSA-compliant provisions must be deemed void as of the earlier of the date that one of the parties alleged noncompliance in a pleading or motion or the date the court finds that noncompliance. This is consist- ent with the Appellate Division's decision in. Clark v. Liska, 263 A.D.2d 640, (3d Dept., 1999), which treated a motion to vacate a stipu- lation for failing to comply with these requirements as a prospective modification of the parties' obligations. Noting that retroactive vaca- tur of the agreement would negatively affect the accumulated child support arrears owed by defendant, cancellation of which is generally prohibited, the court affirmed the modification date as the date of the application. See also Luisi v. Luisi, 6 A.D.3d 398 (2d Dept., 2004); Matter of B.J.G. v. MD.G., 29 Misc.3d 670 Sup.Ct., Nassau Co., 2010). Cf, Jefferson v. Jefferson, 21 A.D.3d 879, (2d Dept., 2005) (noncompli- ance with CSSA rendered agreement invalid and unenforceable; matter remitted for new determination of child support retroactive to the original date of the agreement). Further, this measure requires that, upon a finding of noncompliance, the court must schedule a hearing to determine an appropriate amount of child support as of the earlier of the date the noncompliance had been asserted in a pleading or a motion or the date of the court's finding of noncompliance. Concomitantly, the measure provides that the noncompli- ance with the CSSA may not be asserted as a defense to non-payment of child support in violation of an agreement or stipulation for a period prior to assertion of noncompliance in a motion or pleading or judicial determination of noncompliance, whichever was earlier. At the same time, the measure recognizes that there are instances when child support provisions that do not comply with the CSSA are so intert- wined with a non-child support provision that voiding the child support provisions would also result in the inappropriate invalidation of non- child support provisions. See, Cimons v. Cimons, 53 A.D.3d 125 (2nd Dept., 2008). Therefore the measure provides that if Family Court deter- mines that there are intertwined provisions over which it has no juris- diction, e.g., equitable distribution, it must dismiss the petition in order to allow the parties to return to Supreme Court. Finally, the measure provides that unless Supreme Court has retained exclusive jurisdiction to enforce or modify an agreement, Family Court would have subject matter jurisdiction to review, and, where necessary, set a new child support obligation in cases in which a divorce judgment did not conform to the CSSA. See J.Gallet and M.Fine, Spouse and Child Support in New York § 13:2 (Feb., 2018 Update). While the Third Depart- ment has held that Family Court has the authority to make such an order, (Hardman v. Coleman, 154 A.D.3d 1146 (3rd Dept., 2017), Du Bois v. Swisher, 306 A.D.2d 610 (3rd Dept., 2003)),the First and Second Depart- ments have decided that in the absence of statutory authority, Family Court has no jurisdiction to make a new order of support where it finds that the underlying order did not comply with the CSSA. See Byrne v. Javino, 145 A.D.3d 718 (2nd Dept., 2016); Georgette D. W. v. Gary N.R., 134 A.D.3d 406 (1st Dept., 2015); Castaneda v. Castaneda, 132 A.D.3d 667 (2nd Dept., 2015); Savini v. Burgaleta, 34 A.D.3d 686 (2d Dept., 2006). If a Family Court in one of these jurisdictions finds that a support order is unenforceable, it has no choice but to dismiss the petition and direct the parties to return to Supreme Court, an often time-consuming and expensive option. And since the order is invalid, Family Court cannot even direct a support obligor to pay arrears that may have accrued under the order to the custodial parent. In light of the ambiguity surrounding the law in this area and, in particular, the varying approaches taken by the courts regarding the treatment of agreements and stipulations deemed not to comply with the CSSA, the instant measure will provide needed clarification. In so doing, it will spur greater compliance with the CSSA, thus fulfilling the clear legislative intent that children be provided with appropriate support. This measure would take effect 90 days after becoming law. 2017-18 LEGISLATIVE HISTORY: Senate 4829-A (Avella) (Judiciary) OCA 2017-16
2019-S6168 (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
6168
2019-2020 Regular Sessions
I N S E N A T E
May 21, 2019
___________
Introduced by Sen. HOYLMAN -- (at request of the Office of Court Admin-
istration) -- read twice and ordered printed, and when printed to be
committed to the Committee on Judiciary
AN ACT to amend the family court act and the domestic relations law, in
relation to agreements and stipulations of child support
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraph (h) of subdivision 1 of section 413 of the family
court act, as amended by chapter 41 of the laws of 1992, is amended to
read as follows:
(h) (1) A validly executed agreement or stipulation voluntarily
entered into between the parties after the effective date of this subdi-
vision presented to the court for incorporation in an order or judgment
shall include THE FOLLOWING:
(I) a provision stating that the parties have been advised of the
provisions of this subdivision; and
(II) A PROVISION STATING that the basic child support obligation
provided for therein would presumptively result in the correct amount of
child support to be awarded.
(2) In the event that such agreement or stipulation deviates from the
basic child support obligation, the agreement or stipulation must speci-
fy the amount that such basic child support obligation would have been
and the reason or reasons that such agreement or stipulation does not
provide for payment of that amount.
(3) Such provision may not be waived by either party or counsel.
(4) Nothing contained in this subdivision shall be construed to alter
the rights of the parties to voluntarily enter into validly executed
agreements or stipulations which deviate from the basic child support
obligation provided such agreements or stipulations comply with the
provisions of this paragraph. The court shall, however, retain
discretion with respect to child support pursuant to this section.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10896-01-9 S. 6168 2 (5) Any court order or judgment incorporating a validly executed agreement or stipulation which deviates from the basic child support obligation shall set forth the court's reasons for such deviation. (6) IF A COURT OF COMPETENT JURISDICTION FINDS THAT SECTIONS RELATING TO CHILD SUPPORT IN ANY AGREEMENT, STIPULATION OR COURT ORDER FAIL TO COMPLY WITH ANY OF THE PROVISIONS OF THIS PARAGRAPH, SUCH SECTIONS SHALL BE DEEMED VOID AS OF THE DATE THAT ANY OF THE PARTIES RAISES THIS FAIL- URE TO COMPLY IN A PLEADING OR MOTION OR AS OF THE DATE THAT A COURT OF COMPETENT JURISDICTION MAKES A FINDING OF THE FAILURE TO COMPLY, WHICH- EVER IS EARLIER. ANY SECTIONS OF AN AGREEMENT, STIPULATION OR COURT ORDER THAT ARE SO DIRECTLY CONNECTED OR INTERTWINED WITH A SECTION DEEMED VOID THAT THEY NECESSARILY MUST BE RECALCULATED THEREWITH SHALL ALSO BE DEEMED VOID AS OF THE SAME EARLIER DATE. PROVIDED, HOWEVER, THAT THE PROVISIONS OF THIS SUBPARAGRAPH SHALL BE SUBJECT TO THE TERMS OF SUBPARAGRAPH EIGHT OF THIS PARAGRAPH. (7) IF A COURT OF COMPETENT JURISDICTION FINDS THAT AN AGREEMENT, STIPULATION OR COURT ORDER FAILS TO COMPLY WITH ANY OF THE PROVISIONS OF THIS PARAGRAPH, THE COURT SHALL ISSUE A TEMPORARY ORDER OF CHILD SUPPORT AND SCHEDULE A HEARING TO DETERMINE THE FINAL CHILD SUPPORT ORDER. THE FINAL DETERMINATION OF CHILD SUPPORT SHALL BE MADE PURSUANT TO THIS SECTION DE NOVO AND SHALL BE EFFECTIVE AS OF THE DATE THAT ANY OF THE PARTIES RAISES THE FAILURE TO COMPLY WITH ANY OF THE PROVISIONS OF THIS PARAGRAPH IN A PLEADING OR MOTION OR A COURT OF COMPETENT JURISDICTION MAKES A FINDING OF THE FAILURE TO COMPLY, WHICHEVER IS EARLIER. (8) IF THE FAMILY COURT FINDS THAT SECTIONS OF AN AGREEMENT, STIPU- LATION OR COURT ORDER OTHER THAN THOSE RELATING TO CHILD SUPPORT ARE DIRECTLY CONNECTED OR INTERTWINED WITH A SECTION THAT RELATES TO CHILD SUPPORT THAT THE COURT HAS FOUND FAILS TO COMPLY WITH THIS PARAGRAPH, IT SHALL DISMISS THE PROCEEDING WITHOUT PREJUDICE. (9) THE PROVISIONS OF THIS PARAGRAPH SHALL NOT CONSTITUTE A DEFENSE TO NON-PAYMENT OF A CHILD SUPPORT OBLIGATION PRIOR TO THE DATE THAT ANY OF THE PARTIES RAISES THE FAILURE TO COMPLY IN A PLEADING OR MOTION OR A COURT OF COMPETENT JURISDICTION MAKES A FINDING OF THE FAILURE TO COMPLY, WHICHEVER IS EARLIER. (10) FOR THE PURPOSES OF THIS SECTION, A COURT OF COMPETENT JURISDIC- TION SHALL BE EITHER THE FAMILY COURT OR THE SUPREME COURT, NOTWITH- STANDING THE COURT IN WHICH THE AGREEMENT, STIPULATION OR ORDER WAS INITIATED, UNLESS THE SUPREME COURT HAS RETAINED EXCLUSIVE JURISDICTION TO ENFORCE OR MODIFY THE AGREEMENT, STIPULATION OR ORDER. § 2. Paragraph (h) of subdivision 1-b of section 240 of the domestic relations law, as amended by chapter 41 of the laws of 1992, is amended to read as follows: (h) (1) A validly executed agreement or stipulation voluntarily entered into between the parties after the effective date of this subdi- vision presented to the court for incorporation in an order or judgment shall include THE FOLLOWING: (I) a provision stating that the parties have been advised of the provisions of this subdivision[,]; and (II) A PROVISION STATING that the basic child support obligation provided for therein would presumptively result in the correct amount of child support to be awarded. (2) In the event that such agreement or stipulation deviates from the basic child support obligation, the agreement or stipulation must speci- fy the amount that such basic child support obligation would have been and the reason or reasons that such agreement or stipulation does not provide for payment of that amount. S. 6168 3 (3) Such provision may not be waived by either party or counsel. (4) Nothing contained in this subdivision shall be construed to alter the rights of the parties to voluntarily enter into validly executed agreements or stipulations which deviate from the basic child support obligation provided such agreements or stipulations comply with the provisions of this paragraph. The court shall, however, retain discretion with respect to child support pursuant to this section. (5) Any court order or judgment incorporating a validly executed agreement or stipulation which deviates from the basic child support obligation shall set forth the court's reasons for such deviation. (6) IF A COURT OF COMPETENT JURISDICTION FINDS THAT SECTIONS RELATING TO CHILD SUPPORT IN ANY AGREEMENT, STIPULATION OR COURT ORDER FAIL TO COMPLY WITH ANY OF THE PROVISIONS OF THIS PARAGRAPH, SUCH SECTIONS SHALL BE DEEMED VOID AS OF THE DATE THAT ANY OF THE PARTIES RAISES THIS FAIL- URE TO COMPLY IN A PLEADING OR MOTION OR AS OF THE DATE THAT A COURT OF COMPETENT JURISDICTION MAKES A FINDING OF THE FAILURE TO COMPLY, WHICH- EVER IS EARLIER. ANY SECTIONS OF AN AGREEMENT, STIPULATION OR COURT ORDER THAT ARE SO DIRECTLY CONNECTED OR INTERTWINED WITH A SECTION DEEMED VOID THAT THEY NECESSARILY MUST BE RECALCULATED THEREWITH SHALL ALSO BE DEEMED VOID AS OF THE SAME EARLIER DATE. PROVIDED, HOWEVER, THAT THE PROVISIONS OF THIS SUBPARAGRAPH SHALL BE SUBJECT TO THE TERMS OF SUBPARAGRAPH EIGHT OF THIS PARAGRAPH. (7) IF A COURT OF COMPETENT JURISDICTION FINDS THAT AN AGREEMENT, STIPULATION OR COURT ORDER FAILS TO COMPLY WITH ANY OF THE PROVISIONS OF THIS PARAGRAPH, THE COURT SHALL ISSUE A TEMPORARY ORDER OF CHILD SUPPORT AND SCHEDULE A HEARING TO DETERMINE THE FINAL CHILD SUPPORT ORDER. THE FINAL DETERMINATION OF CHILD SUPPORT SHALL BE MADE PURSUANT TO THIS SECTION DE NOVO AND SHALL BE EFFECTIVE AS OF THE DATE THAT ANY OF THE PARTIES RAISES THE FAILURE TO COMPLY WITH ANY OF THE PROVISIONS OF THIS PARAGRAPH IN A PLEADING OR MOTION OR A COURT OF COMPETENT JURISDICTION MAKES A FINDING OF THE FAILURE TO COMPLY, WHICHEVER IS EARLIER. (8) IF THE FAMILY COURT FINDS THAT SECTIONS OF AN AGREEMENT, STIPU- LATION OR COURT ORDER OTHER THAN THOSE RELATING TO CHILD SUPPORT ARE DIRECTLY CONNECTED OR INTERTWINED WITH A SECTION THAT RELATES TO CHILD SUPPORT THAT THE COURT HAS FOUND FAILS TO COMPLY WITH THIS PARAGRAPH, IT SHALL DISMISS THE PROCEEDING WITHOUT PREJUDICE. (9) THE PROVISIONS OF THIS PARAGRAPH SHALL NOT CONSTITUTE A DEFENSE TO NON-PAYMENT OF A CHILD SUPPORT OBLIGATION PRIOR TO THE DATE THAT ANY OF THE PARTIES RAISES THE FAILURE TO COMPLY IN A PLEADING OR MOTION OR A COURT OF COMPETENT JURISDICTION MAKES A FINDING OF THE FAILURE TO COMPLY, WHICHEVER IS EARLIER. (10) FOR THE PURPOSES OF THIS SECTION, A COURT OF COMPETENT JURISDIC- TION SHALL BE EITHER THE FAMILY COURT OR THE SUPREME COURT, NOTWITH- STANDING THE COURT IN WHICH THE AGREEMENT, STIPULATION OR ORDER WAS INITIATED, UNLESS THE SUPREME COURT HAS RETAINED EXCLUSIVE JURISDICTION TO ENFORCE OR MODIFY THE AGREEMENT, STIPULATION OR ORDER. § 3. This act shall take effect on the ninetieth day after it shall have become a law and shall apply to agreements and stipulations entered into on or after such effective date.
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