D. v. O.

• Decision Date: 01 May 1974
• Parties: . Audrey D., Mother o/b/o Jamie O., Petitioner, v. Michael O., Respondent. * Family Court, City of New York, New York County
• Court: New York Family Court

Page 283

355 N.Y.S.2d 283

77 Misc.2d 938

In the Matter of a Proceeding for Support Under Article 4 of

the Family Court Act.

Audrey D., Mother o/b/o Jamie O., Petitioner, v. Michael O., Respondent. ^*

Family Court, City of New York, New York County.

May 1, 1974.

Kass, Goodkind, Wechsler and Gerstein, New York City, for petitioner.

Mitchell Salem Fisher, of Wang & Ripkin, New York City, for respondent.

NANETTE DEMBITZ, Judge:

Respondent's payment of arrears of child support, under a Mexican divorce decree incorporating a separation agreement, has already been directed by this Court, 77 Misc.2d 230, 352 N.Y.S.2d 842. Petitioner now seeks an award of interest on each defaulted payment from its due date.

Neither the Family Court Act nor the Domestic Relations Law mentions the payments of interest on arrears; and it is true, as respondent argues, that a demand for such interest is unusual. Nevertheless, the award of interest in a matrimonial action has precedent. Kelley v. Kelley, 275 App.Div. 887, 90 N.Y.S.2d 178 (4th Dept., 1949); Roth v. Roth, 47 Misc.2d 701, 263 N.Y.S.2d 179 (Sup.Ct., N.Y.Cnty., 1965); Wright v. Wright, 139 Misc. 423, 248 N.Y.S. 317 (Sup.Ct., Rockland Cnty., 1931); Matter of Glickman, 132 Misc. 785, 786, 230 N.Y.S. 671, 672 (Surr.Ct., Kings Cnty., 1929). (In the last-cited case, while the Surrogate referred to enforcement of a 'judgment for alimony,' he in fact enforced arrears for which no judgment had theretofore been entered.) The fact that these cases involved alimony for an ex-wife rather than child support seems an inconsequential circumstance.

Besides these precedents, C.P.L.R. 5001 is persuasive authority for this Court's discretion to award interest on arrears in the instant proceeding.

The C.P.L.R. applies in the Family Court to the extent appropriate (Fam. Ct. Act, sec. 165). Subdivision (a) of C.P.L.R. 5001 provides:

'Interest shall be recovered upon a sum awarded because of a breach of performance of a contract . . . except that in an action of an equitable nature, interest and the rate and date from which it shall be computed shall be in the court's discretion . . .'

Since 5001 is phrased in terms of a recovery Because of a breach of contract rather than For a breach, it is arguable that 5001 is directly applicable to an action like the instant one, under a decree incorporating a contract. At the least, 5001 undoubtedly must be regarded as a controlling expression of policy, because the award herein is so closely related to an award 'because of a breach of performance of a contract' (compare Morgan v. Onassis, 5 N.Y.2d 732, 177 N.Y.S.2d 714, 152 N.E.2d 670).

Since the order herein is enforcible by contempt and this action therefore should be deemed 'of an equitable nature' (compare Bosco v. Alicino, 37 A.D.2d 552, 322 N.Y.S.2d 414, 1st Dept., 1971), 5001 dictates this Court's exercise of discretion in awarding interest to petitioner. Thus, this Court is to consider something more than the principle that mandates the award of interest: that 'interest is essential to complete indemnity' (Flamm v. Noble, 296 N.Y. 262, 268, 72 N.E.2d 886, 888) and is 'an element of compensation for delayed payment' (Matter of Kavares, 29 A.D.2d 68, 71, 285 N.Y.S.2d 983, 987 (1st Dept.). In the discretionary award of interest the Court is also to consider the sometimes elusive, composite quality of the defaulter's good faith. (See Ellis v. Kelsey, 241 N.Y. 374, 379--380, 150 N.E. 148, 149; Spadanuta v. Village of Rockville Centre, 20 A.D.2d 799, 248 N.Y.S.2d 405 (2nd Dept., 1964), aff'd 15 N.Y.2d 755, 257 N.Y.S.2d 329; Matter of Grove, 12 Misc.2d 727, 731, 177 N.Y.S.2d 317, 321 (Sup.Ct., N.Y.Cty., 1958).)

The test is easy to apply and yields a result in the petitioner's favor, in regard to the items...