Family Law Review, Vol. 28, No. 1
The Suspension of Licenses as an Enforcement Tool to Collect Support Arrears
Notes & Comments: Elliot D. Samuelson,* Editor
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
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).
Drivers’ License Child Support Arrears
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. Section 244‑b applies solely to the suspension
of New York drivers' licenses.
For example, $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
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
*Mr. Samuelson is a partner in the Garden City firm of Samuelson, Rieger