New York Law Journal: Downward Modifications of Child Support, Unemployment and COVID-19

Lisa Zeiderman, Managing Partner at Miller Zeiderman LLP together with Siobhan O’Grady, Partner at Miller Zeiderman LLP, authors the latest article for the New York Law Journal .Read the full article below. 

By Lisa Zeiderman and Siobhan O’Grady | April 29, 2020

On March 20, 2020, in the midst of COVID-19 and to keep New York safe and healthy, Gov. Andrew Cuomo issued Executive Order 202.8, also known as “New York State on PAUSE,” thereby shutting down all non-essential businesses. All statutory time limits for all legal filings in all procedural laws of the state were tolled.

Understandably, unemployment rates and unemployment insurance claims soared to unprecedented levels. A March 26, 2020 Press Release by the New York State Department of Labor (NYSDOL), reported that for the week ending March 21, 2020: (1) NYSDOL received 1,734,100 calls and 2,270,300 web hits, (2) initial Unemployment Insurance (UI) claims increased 520% in New York state compared to the same week in 2019, and (3) 80,500 UI claims were filed just that week. An April 2, 2020 Press Release by NYSDOL, reported that for the week ending March 28, 2020: (1) there were 369,025 UI claims filed, an increase of 288,516 from the week before, and (2) the unemployment rate increased 2,674% from the same time period in 2019. An April 16, 2020 Press Release by NYSDOL, with the express disclaimer that many coronavirus related job losses from March 2020 were not reflected in the figures, reported that: (1) private sector jobs decreased in March 2020 by 42,900, the steepest monthly drop since April 2009, and (2) the unemployment rate rose from 3.7% to 4.5%—a .8% increase—the largest monthly increase since 1976.

On March 22, 2020, Chief Administrative Judge Lawrence K. Marks issued Administrative Order (AO) 78/20 prohibiting the filing of any papers (hard copy and electronic filings) in any non-essential matters not listed in the accompanying Schedule A. The “essential proceedings” listed in AO/78/20 Schedule A for Family Court does not include child support petitions. While “orders to show cause” are also listed as “essential proceedings” in AO/78/20 Schedule A, and the order contains a “catch-all” provision for “All Courts” listing “any other matter that the court deems essential,” the submission of a matter not specifically listed as an “essential proceeding” is not likely to successfully result in a “filing with the Court” as there is minimal court staff in each Family Court to effectuate the processing of the “essential proceedings,” and in some jurisdictions, all orders to show cause must be approved by the district administrative judge before they are signed by a court.

In addition to the essential proceedings pursuant to AO/78/20, Chief Administrative Judge Lawrence Marks issued AO/85/20 on April 8, 2020 directing the individual judges in the courts throughout the state to begin addressing the following matters remotely: (1) conferencing pending cases, (2) deciding fully submitted motions, and (3) addressing discovery disputes and other similar matters “not requiring the filing of papers.” AO/85/20 specifically notes: “No new nonessential matters may be filed until further notice …”

To date, unless there has been some direction on the local district levels throughout the state, child support petitions, including downward modification petitions and initial support petitions, are not listed as “essential.” Further, if litigants are not able to file a support modification petition, the applicant is essentially denied retroactive relief to the date of the basis for filing of the application. What does that mean? Pursuant to the current orders, it may mean that despite the COVID-19 related job loss, the applicant may not be permitted to file the application with the court and would then not be entitled under the relevant statutes to retroactive relief.

During normal “non-pandemic” times, an individual subject to a child support obligation would have the ability to file a modification petition in the Family Court (or Supreme Court if seeking to modify a child support provision contained in a Judgment of Divorce) seeking a reduction of his/her child support obligation based upon the following grounds:

1. Substantial change in circumstances [Family Court Act (FCA) §451(3)(a) and Domestic Relations Law (DRL) §236 Part B (9)(b)(2)(i)];

And, unless the parties have specifically opted out of the following provisions in a validly executed agreement or stipulation,

2. The passage of three years from the date of the Order [FCA §451(3)(b)(i) and DRL §236 Part B (9)(b)(2)(ii)(A)]; or

3. A change in either party’s gross income by 15% or more since the date of the Order, provided that the reduction of income will not be grounds for modification unless it was involuntary and the party has made diligent attempts to secure employment commensurate with his/her education, ability and experience [FCA §451(3)(b)(ii) and DRL §236 Part B (9)(b)(2)(ii)(B)).

A person who lost his/her job through no fault of his/her own would be permitted to file a downward modification petition under #1 or #3 provided the petition alleged sufficient facts.

Once a downward modification petition or application is filed with the Family Court or Supreme Court, if the applicant is successful on his/her application, the court can grant the modification retroactively to the date of filing [FCA §451(1) and DRL §236 Part B (9)(b)(2)(iii)]. Under the current scenario in light of the prohibition on new filings in “non-essential” matters delineated in AO/78/20 and AO/85/20, if a litigant is prohibited from filing a downward modification, the court has no authority or discretion to reduce any child support arrears accrued prior to the date of filing of the application [FCA §451(1) and DRL §236 Part B (9)(b)(2)(iii)]. Therefore, if an applicant is precluded from filing his/her petition, he/she is still obligated to pay the full support order, and arrears will still accrue, until such time as he/she is permitted to file the application with the court.

According to the 2019 Unified Court System Annual Report, 195,647 support petitions were filed in New York state from Jan. 1-Dec. 31, 2019—which averages 16,303 per month. The 2018 figure is similar: 195,628 petitions, which averages 16,302 per month. The global COVID-19 pandemic resulting in Governor Cuomo’s “New York State on PAUSE” initiative led to catastrophic unemployment rates. That fact, coupled with Chief Administrative Judge Mark’s order precluding new filings, will have an equally catastrophic impact upon New Yorker’s statewide who have lost their jobs and can no longer afford to pay their court-ordered child support obligations. While Governor Cuomo has issued more than 20 executive orders from March 7, 2020 to date, each addressing various COVID-19 legal anomalies and modifying or suspending various state laws, no order has been issued to afford relief to the scores of New Yorkers who may be impacted by the aforementioned scenario.

In the interim, matrimonial and family law attorneys are left trying to guide their clients as to how best to navigate these unprecedented times.

As a result of the evolution of the COVID-19 pandemic and the resulting restrictions, the protocols and directions regarding court procedures are changing almost daily. As stated above, AO/78/20 does not list child support matters (and specifically downward modification petitions) as “essential” proceedings. However, it may be possible that individual districts are permitting filings of such petitions on a local level. Litigants and attorneys should be checking the protocols in their local family courts every day to see if the individual family court is accepting filings of child support petitions.

In the event that a downward modification petition cannot be filed, transparency and reasonableness between parties should always be encouraged, and an open dialogue to attempt to reach written stipulations/agreements is always best. If that cannot be accomplished, it may be wise to draft the relevant petition or commencement document and formally serve it on the other party and his/her counsel to place him/her on notice of the nature of the relief requested—followed of course by filing with the Court on the first possible day filings are permitted.

The support application should include a formal financial disclosure affidavit with documentation evidencing the job loss and/or receipt of unemployment benefits, as well as a listing of all job search efforts. Be sure to keep track of any online applications for employment opportunities by taking a snapshot of the application and any pertinent information as well as a log of any contacts that you make for job prospects. Further, a job loss does not automatically mean that the obligor cannot pay anything towards his/her obligation—making partial payments could be looked upon by the courts with favor in any future violation proceedings and during the support modification.

As noted previously, a similar conundrum exists with petitions for initial support orders—which are only retroactive to the date of filing—and are currently not among the essential proceedings listed in AO/78/20 that can be filed with the courts. Even if the local districts permitted filings at some point after March 22, 2020, if the basis for the application arose before the filing was allowed, the issue of retroactivity still applies and may still need to be litigated.

Likewise, in matrimonial actions, the inability to commence an action with the filing of a summons (either in hard copy or electronically) results in the inability to “stop the clock” on the valuation of marital assets by obtaining a “date of commencement” for eventual equitable distribution.

While the court system is understandably limited with in-person staffing resources in the courthouses throughout the state, it would seem that permitting support petitions (modifications and initial support petitions) and matrimonial actions to be “filed” statewide in order to capture the all-important “filing date”—without any requests for judicial intervention permitted until such time as the court can address them—may be an appropriate compromise.

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Reprinted with permission from the “April 29, 2020” edition of the “New York Law Journal”© 2020 ALM Media Properties, LLC. All rights reserved.
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