This opinion is uncorrected and subject to revision before
publication in the New York Reports.
-----------------------------------------------------------------
No. 82
In the Matter of Columbia County
Support Collection Unit, &c.,
Respondent,
v.
Joshua A. Risley,
Appellant.
(And Two Other Related
Proceedings.)
Theodore J. Stein, for appellant.
Daniel Gartenstein, for respondent.
GARCIA, J.:
We are called upon to decide whether Family Court, in
revoking two prior suspended orders of commitment, was authorized
to order consecutive six-month sentences for each to run
consecutively with a third six-month sentence imposed for a
current violation. We conclude that it was.
- 1 -
- 2 - No. 82
Enforcing child support obligations has long been a
priority in New York. More than fifty years ago, this State
enacted the "Family Court Act," establishing the Family Court and
its powers of enforcement, including the power to commit an
individual "to jail for a term not to exceed six months" for a
willful failure to obey a support order (Family Ct Act § 454 [a],
L 1962, ch 686). Subsequently, this State enacted the "New York
State Support Enforcement Act of 1986" (Support Enforcement Act),
aimed at addressing the harmful effects of the pervasive
disregard of court-ordered support obligations. In approving
this legislation, then Governor Mario Cuomo admonished, "[t]he
absence of an effective child support system has been a major
factor in the alarming rate of poverty among children in this
country, who are owed nearly $3 billion in unpaid child support"
(Governor's Mem approving L 1986, ch 892, 1986 McKinney's Session
Laws of NY at 3213).1 The Support Enforcement Act's primary
purpose was to "ensure that the children of this state . . .
receive the support that is their legal right" by addressing
"support enforcement issues vigorously and comprehensively" (id.
at 3214) and it "[s]et forth all the remedies available for
enforcing a support order upon failure of a respondent to comply,
1
Today, that number has increased to over $115 billion (see
U.S. Department of Health and Human Services, Administration for
Children and Families, Office of Child Support Enforcement,
Preliminary Report FY 2015 at 90,
http://www.acf.hhs.gov/sites/default/files/programs/css/fy2015_pr
eliminary.pdf [accessed May 9, 2016]).
- 2 -
- 3 - No. 82
including . . . commitment" (L 1986, ch 892, Governor's Program
Bill Mem No. 84, Bill Jacket at 20).
As a result, Family Court is empowered "to use any or
all enforcement powers in every proceeding brought for violation
of a court order" of support (Family Ct Act § 454 [1]). Such
powers include the authority to sentence willfully non-compliant
parents to jail "for a term not to exceed six months[,]" but also
to suspend such orders of commitment when appropriate (see Family
Ct Act §§ 454 [3] [a], 455 [1]).
Here, the Appellate Division rejected the contention
that consecutive commitments were not authorized by Family Court
Act § 454 (3) and concluded that "[g]iven the father's failure to
contest the amounts due and his willful refusal to voluntarily
pay them despite repeated opportunities afforded to him over more
than three years, we find no abuse of discretion in the
determination to run the sentences consecutively" (122 AD3d 1097,
1098 [3d Dept 2014]). We agree and affirm.
"[T]he problems of enforcing a support order could fill
a book" (Matter of Powers v Powers, 86 NY2d 63, 65 [1995]). To
address such problems, Family Court has various tools to use in
achieving the ultimate goal of providing children with the
financial support that is their right. For instance, even absent
a willfulness finding, such enforcement remedies include entry of
a money judgment, income deduction, undertaking, sequestration,
and the suspension of drivers' and recreational licenses (Family
- 3 -
- 4 - No. 82
Ct Act § 454 [2]). Incarceration is an option when the Family
Court determines that a respondent willfully failed to comply
with "any lawful order of support," in which case, the court may:
"[C]ommit the respondent to jail for a term
not to exceed six months. For purposes of
this subdivision, failure to pay support, as
ordered, shall constitute prima facie
evidence of a willful violation. . . . Such
commitment does not prevent the court from
subsequently committing the respondent for
failure thereafter to comply with any such
order . . . " (Family Ct Act § 454 [3] [a]).
Even when the commitment provision is invoked, Family
Court has the discretion to "suspend an order of commitment upon
such reasonable conditions, if any, as the court deems
appropriate to carry out the purposes of [article four] . . . "
(Family Ct Act § 455 [1]). That suspension may, however, be
revoked "at any time" for "good cause shown" (id.).
The father in this case demonstrated the willful
flaunting of support orders the Legislature sought to address in
passing the Support Enforcement Act. Without making any attempt
at an excuse for inability to pay, the father repeatedly failed
to meet his court-ordered support obligations. His conduct
resulted in a substantial amount owed in arrears and two
suspended orders of commitment, one each in 2010 and 2012, for
willfully violating Family Court support orders. Both suspended
commitments were conditioned upon the father making timely child
support payments.
In 2013, Family Court found yet a third willful
- 4 -
- 5 - No. 82
violation of a prior order, revoked the two suspended orders for
the past violations, sentenced the father to a new six-month
sentence, resulting in three consecutive six-month sentences.
Once again, the father made no attempt to plead an inability to
pay or seek modification of the support orders.
In ordering the term of incarceration, Family Court
determined that the father willfully failed to comply with his
child support obligations on three separate violation petitions
and found good cause existed to revoke the father’s two suspended
commitments. The Appellate Division affirmed this conclusion
(122 AD3d at 1098). Here, the father does not challenge the
willfulness findings, but challenges only the Family Court's
authority to order his six-month sentences be served
consecutively.
Family Court's action was taken well after the initial
suspension of the earlier orders of incarceration, raising an
issue of the timing of the revocation. The statute expressly
provides that Family Court "has continuing jurisdiction over any
support proceeding brought under [article four] until its
judgment is completely satisfied and may modify, set aside or
vacate any order issued in the course of the proceeding . . . "
(Family Ct Act § 451 [1]; see also Matter of Damadeo v Keller,
132 AD3d 670, 672 [2d Dept 2015]). In conjunction with this
continuing jurisdiction, Family Court has authority to both
suspend an order of commitment and to revoke such suspension “at
- 5 -
- 6 - No. 82
any time” for “good cause shown” (Family Court Act § 455 [1]; see
Matter of Horike v Freedman, 81 AD3d 1091, 1091 [3d Dept 2011],
lv denied and dismissed 16 NY3d 899 [2011]). These sections make
clear that Family Court may reinstate a suspended commitment at
any time while respondent has failed to satisfy the judgment.
This is consistent with Appellate Division Departments that have
held Family Court has the discretion to revoke a previously
suspended judgment despite the fact that significant time has
lapsed since the suspension (see Matter of Bonneau v Bonneau, 97
AD3d 917, 917-918 [3d Dept 2012]; see also Matter of Putnam
County Probation Dept. v Dimichele, 120 AD3d 820, 820-821 [2d
Dept 2014]).
Therefore, Family Court retained jurisdiction over the
father on the two suspended commitments because he failed to
"completely satisfy" the judgments against him and failed to
comply with ongoing support obligations. "Jurisdiction continues
until such time as all arrears have been paid, no matter how
long, and regardless of the age of the child" (Merril Sobie,
Practice Commentaries, McKinney's 2016, Family Ct Act § 451).
With this jurisdiction, Family Court had statutory authority to
revoke the father's suspended sentences at any time for good
cause shown, despite the lapse in time from the initial
suspension.
Once the determination was made to revoke the
suspensions, Family Court had discretion to impose consecutive
- 6 -
- 7 - No. 82
sentences for each willful violation.
In Walker v Walker, relied on by the Appellate Division
below, this Court held that Family Court had authority under
Family Court Act § 846-a to impose three consecutive six-month
sentences for three separate violations of one protection order
(86 NY2d 624 [1995]). While Walker involved three violations of
one protection order –- not the suspended sentence issue we have
here -- this Court held "that the Family Court is not generally
precluded from imposing, in the exercise of prudent and
appropriate discretion, a maximum six-month jail commitment for
each separate and distinct violation of an order of protection,
to be served consecutively" (id. at 627).
The language in Family Court Act § 454 (3) (a) and §
846-a, the statute at issue in Walker, which prescribe Family
Court's power to commit respondents to jail for willful
violations of support and protection orders respectively, is
nearly identical and has been so since each was originally
drafted in 1962 (compare Family Ct Act § 454 [3] [a] with Family
Ct Act § 846-a; see also L 1962, ch 686 at 3087 § 454 [a], 3128 §
846). Although Walker is at some level distinguishable based on
the policy behind orders of protection, namely to prevent
physical harm, while orders of support are intended to enforce
child support obligations, similar enforcement goals underlie
both statutes. As was the case with orders of protection, the
judicial authority to commit prescribed in § 454 (3) (a) was
- 7 -
- 8 - No. 82
intended to prevent violations, deter further violations and
vigorously and comprehensively enforce Family Court orders.
Accordingly, as with Family Court Act § 846-a, consecutive
sentences are authorized by the language and policy goals of
article 4 of the statute.
With respect to concerns over lengthy incarceration of
those simply unable to pay, the statutory scheme provides
protection: "any respondent against whom an order of commitment
has been issued, if financially unable to comply with any lawful
order . . . may make application to the court for an order
relieving him or her of payments directed in such order and the
commitment order” (Family Ct Act § 455 [2]). It is conceded that
the father here never claimed an inability to pay or sought
adjustment of his child support obligations. To the contrary,
the father repeatedly affirmed his ability to make weekly
payments and never sought reduction or modification of his child
support obligations.
Willful violators of Family Court orders should not in
effect be given immunity for past violations -- conduct which
would have justified incarceration at the time -- solely because
the trial court exercised restraint in fashioning a remedy that
provided yet another opportunity to meet support obligations.
We conclude that it was within the discretion of the Family Court
judge to impose consecutive sentences for each willful violation.
Accordingly, the Appellate Division order should be affirmed,
- 8 -
- 9 - No. 82
without costs.
* * * * * * * * * * * * * * * * *
Order affirmed, without costs. Opinion by Judge Garcia. Chief
Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam and Fahey
concur. Judge Stein took no part.
Decided June 7, 2016
- 9 -