Shutt v. Shutt
| Decision Date | 11 August 1986 |
| Citation | 133 Misc.2d 81,506 N.Y.S.2d 611 |
| Parties | David A. SHUTT, Plaintiff, v. Catherine V. SHUTT, Defendant. |
| Court | New York Supreme Court |
Plaintiff and defendant were divorced in 1977. The original decree incorporated a Separation Agreement which provided for monthly child support payments of $100.00 per month for each of the two children and alimony to the wife of $80.00 per month. A modification of the agreement and the decree in 1981 eliminated the alimony and increased child support to $47.50 per week per child. The new agreement, incorporated in the amended decree, required the husband to pay the reasonable medical expenses of the children.
The defendant wife now alleges that plaintiff is in arrears on support payments and payment of medical expenses for the children. Pursuant to the provisions of Section 5241 of the CPLR subd. b & d, her attorney issued an income execution on notice to the husband. The husband claims that there has been a "mistake of fact" as set forth under subd. e, and seeks to vacate the execution. He also seeks to modify the support provisions on the ground that one of the children is emancipated. The wife has cross-moved for an Income Deduction Order (CPLR § 5242), a money judgment for arrears, and an award of counsel fees (DRL § 237).
Sections 5241 and 5242 were enacted to provide an expeditious method for enforcing support orders. Section 5241 provides, inter alia, that once the debtor is in default, the creditor is automatically entitled to an income execution without aid of the court. Default is defined as failure to make three full payments or a total arrears equal to one month's payment. Once the mechanisms of Section 5241 are started, the debtor cannot automatically prevent or vacate the execution merely by paying the arrears. The apparent assumption of Section 5241 is that once a party meets the statutory definition of "default", he or she is presumed sufficiently untrustworthy, thereby justifying a continuation of the execution even if the debtor is "current".
Under subd. (e) of the statute, a debtor may only seek relief from the execution if he can establish a "mistake of fact" which is defined in subd. (a)(8) as "an error in the amount of current support or arrears". Plaintiff contends that there has been an error, and that the income execution is improper because he is not "a debtor in default".
Defendant counters that plaintiff has defaulted in making five weekly payments of $95.00 for a total of $475.00; paying medical expenses of $585.00, and making unauthorized deductions of $20.00 each from the weekly support checks since September 23, 1985, totaling $340.00.
Plaintiff's affidavits raise substantial questions with respect to each of these items. The $20.00 deductions were based on plaintiff's misreading the impact of the 1981 modification. Prior to the modification, plaintiff was obligated to pay $280.00 per month--$200.00 for child support and $80.00 for alimony. Paragraph 9 in the Separation Agreement sets forth the alimony obligation and provides for its termination in the event of the defendant's co-habitation with another man. Plaintiff alleges such co-habitation commenced in September 1985, which defendant does not deny. Thus, plaintiff began deducting $20.00 per week ($80.00 divided by 4) from the support checks for the children.
However, the 1981 Modification eliminated Paragraph 8 and 9 from the Agreement and substituted a weekly child support payment of $95.00. The $20.00 deductions were, therefore, improper. Although restitution has now been made, defendant contends that this error is sufficient to sustain an execution since this "mistake of fact" does not come within the statutory definition.
The Court disagrees. Although mindful of the exemplary purposes of Section 5241, it did not intend to eliminate the due process rights of an individual to correct an error or to explain the basis for a default. Unlike the situation presented in Werner v. Werner, (N.Y.L.J., 2/24/86, p. 1, col. 3), relied on by defendant, there is no indication of a "resolve not to obey any support order of this court unless it meets with (plaintiff's) approval". There is no evidence that plaintiff has engaged in the type of "game playing" that Section 5241 was designed to prevent.
Plaintiff also raises substantial issues concerning the unpaid medical expenses. (It appears that to date, the sum of $192.00 remains outstanding). Plaintiff had requested either the original bills or...
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