New York Child Support Obligor Appeals Finding of “Willful” Violation of Order

Counselling [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayWhen married parents of one or more minor children seek a divorce in New York, they must arrange for the custody and support of the children before a court may make a final order of divorce. Courts welcome efforts by the parties to a divorce to reach an agreement with regard to child support and other issues. Otherwise, a court will decide these issues after a trial. The party entitled to receive support payments (the “obligee”) may enforce a support order against the party ordered to pay support (the “obligor”) by initiating a new proceeding in court. A New York Appellate Court recently considered an obligor’s challenge to a finding that he “willfully” violated a support order in Matter of O’Sullivan v. Schebilski.

A common arrangement for child custody and child support involves a child living with one parent and having visitation with the other parent, while that other parent makes child support payments. A child support obligation remains in effect until the child turns 21, dies, or is legally emancipated. New York courts may take a wide range of factors into consideration when determining the amount of a child support obligation, including the health and educational needs of the child or children, each parent’s income and earning capacity, and any disabilities or needs affecting either parent.

The parties in O’Sullivan are the parents of one child, who was born in 1992. A court issued a support order in July 2005 and modified it in September 2009. It ordered the father/obligor to pay $142 per week in child support, although the O’Sullivan ruling does not state if this was the original or the modified amount. The mother/obligee brought an enforcement action against the obligor in February 2013, claiming that he owed about $80,000 in child support.

During a hearing soon afterwards, the obligor reportedly admitted to having made no child support payments since March 2005, which was several months before that date of the support order. His total arrearage, he conceded, was over $99,000. He claimed in court that he had been unable to work since 2001, but he did not provide any medical evidence to back this up. He also stated that he was expecting a settlement in a personal injury case. The court granted a judgment for $47,600 and imposed a jail sentence, which it suspended on the condition that the obligor give the personal injury settlement to the obligee. The record indicates that both parties consented to the judgment.

The obligor turned over $12,000 from the personal injury settlement in July 2013. County child support officials eventually determined that federal law prohibited the assignment of a Social Security Disability Insurance (SSDI) lump-sum payment, which totaled about $16,000, to the obligee. The court instead ordered the obligor to pay half of his monthly Supplemental Security Income (SSI) benefit to the obligee.

On appeal, the obligor challenged the court’s finding that his violation of the support order was “willful,” arguing that his disability precluded such a finding. He also claimed that his consent to the order “was neither knowing, intelligent nor voluntary.” The appellate court rejected both claims, and it noted that any allegation that he did not give consent should be raised in a motion to vacate, not an appeal.

Ingrid Gherman has practiced family law in the greater New York City area for over 30 years. We assist our clients with difficult family law questions in matters including divorce, child and spousal support, and custody and visitation. To schedule a confidential consultation with a member of our team, contact us today online or at (212) 941-0767.

More Blog Posts:

Possible Consequences of Failing to Pay Child Support in a New York Family Law Case, New York Divorce Attorney Blog, February 23, 2016

Federal Legislation Would Expand Ability of State Child Support Agencies to Obtain Credit Reports for Non-Paying Parents, New York Divorce Attorney Blog, November 2, 2015

New York Lawsuit Accuses Parent of Obtaining Information to Use In Child Support Modification Case by Hacking, New York Divorce Attorney Blog, October 22, 2015

Photo credit: Counselling [Public domain, CC0 1.0], via Pixabay.