NY State Senate Bill 2021-S7077

Archive: Last Bill Status - On Floor Calendar

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

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 03, 2022	ordered to third reading cal.543 substituted for a7802
Mar 28, 2022	referred to judiciary delivered to assembly passed senate
Mar 03, 2022	advanced to third reading
Mar 02, 2022	2nd report cal.
Mar 01, 2022	1st report cal.577
Jan 05, 2022	referred to judiciary
May 27, 2021	referred to judiciary

Votes

- Mar 28, 2022 - Floor Vote
  S7077
  
  63
  
  Aye
  
  0
  
  Nay
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Floor Vote: Mar 28, 2022
      
      aye (63)
      
      Addabbo Jr.
      
      Akshar
      
      Bailey
      
      Biaggi
      
      Borrello
      
      Boyle
      
      Breslin
      
      Brisport
      
      Brooks
      
      Brouk
      
      Cleare
      
      Comrie
      
      Cooney
      
      Felder
      
      Gallivan
      
      Gaughran
      
      Gianaris
      
      Gounardes
      
      Griffo
      
      Harckham
      
      Helming
      
      Hinchey
      
      Hoylman-Sigal
      
      Jackson
      
      Jordan
      
      Kaminsky
      
      Kaplan
      
      Kavanagh
      
      Kennedy
      
      Krueger
      
      Lanza
      
      Liu
      
      Mannion
      
      Martucci
      
      Mattera
      
      May
      
      Mayer
      
      Myrie
      
      O'Mara
      
      Oberacker
      
      Ortt
      
      Palumbo
      
      Parker
      
      Persaud
      
      Ramos
      
      Rath III
      
      Reichlin-Melnick
      
      Ritchie
      
      Rivera
      
      Ryan
      
      Salazar
      
      Sanders Jr.
      
      Savino
      
      Sepúlveda
      
      Serino
      
      Serrano
      
      Skoufis
      
      Stavisky
      
      Stec
      
      Stewart-Cousins
      
      Tedisco
      
      Thomas
      
      Weik
  Mar 1, 2022 - Judiciary Committee Vote
  S7077
  
  14
  
  Aye
  
  0
  
  Nay
  
  1
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Judiciary Committee Vote: Mar 1, 2022
      
      aye (14)
      
      Bailey
      
      Biaggi
      
      Boyle
      
      Breslin
      
      Gounardes
      
      Hoylman-Sigal
      
      Kaplan
      
      Lanza
      
      O'Mara
      
      Oberacker
      
      Palumbo
      
      Sepúlveda
      
      Skoufis
      
      Thomas
      
      aye wr (1)
      
      Myrie

2021-S7077 (ACTIVE) - Details

See Assembly Version of this Bill:: A7802
Law Section:: Family Court Act
Laws Affected:: Amd §413, Fam Ct Act; amd §240, Dom Rel L
Versions Introduced in 2019-2020 Legislative Session:: S6168

2021-S7077 (ACTIVE) - Summary

Relates to agreements and stipulations of child support; explains when sections of an agreement, stipulation or court order shall be deemed void and the hearing process that shall determine such.

2021-S7077 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S7077

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 stipulation for
failing to comply with these requirements as a prospective modification
of the parties' obligations. Noting that retroactive vacatur 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.
M.D.G., 29 Misc.3d 670 Sup.Ct., Nassau Co., 2010). Cf., Jefferson v.
Jefferson, 21 A.D.3d 879, (2d Dept., 2005) (noncompliance 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
determines that there are intertwined provisions over which it has no
jurisdiction, 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
Department 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 DeptIn-
tents 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.

 
2019-20 LEGISLATIVE HISTORY:

S6168 (Sen Hoylman)  
PASSED OCA 53

 
2017-18 LEGISLATIVE HISTORY:

S4829-A (Sen Avella)  
JUDICIARY OCA 16

2021-S7077 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7077
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                               May 27, 2021
                                ___________
 
 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.

                                                            LBD10255-01-1

 S. 7077                             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. 7077                             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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Senate Bill S7077

Sponsored By

Archive: Last Bill Status - On Floor Calendar

Mar 28, 2022 - Floor Vote

Floor Vote: Mar 28, 2022

Mar 1, 2022 - Judiciary Committee Vote

Judiciary Committee Vote: Mar 1, 2022

2021-S7077 (ACTIVE) - Details

2021-S7077 (ACTIVE) - Summary

2021-S7077 (ACTIVE) - Sponsor Memo

2021-S7077 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S7077

Share this bill

Sponsored By

Brad Hoylman-Sigal

Archive: Last Bill Status - On Floor Calendar

2021-S7077 (ACTIVE) - Details

2021-S7077 (ACTIVE) - Summary

2021-S7077 (ACTIVE) - Sponsor Memo

2021-S7077 (ACTIVE) - Bill Text download pdf

Comments