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WHATEVER CAN BE DONE WITH THOSE “HARD-TO-ENFORCE” CHILD SUPPORT CASES

This presentation explores the issues of notice and due process requirements in court-based enforcement of "hard-to-enforce" child support cases. It discusses recent developments that may have resulted in a more favorable environment for the non-paying party and explores lesser-used remedies for enforcing support against self-employed individuals.

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WHATEVER CAN BE DONE WITH THOSE “HARD-TO-ENFORCE” CHILD SUPPORT CASES

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  1. WHATEVER CAN BE DONE WITH THOSE “HARD-TO-ENFORCE” CHILD SUPPORT CASES • W. Scott Rosenberg, Magistrate, Davidson County Juvenile Court (TN) • Rosalyn Guy McCorkle, Assistant County Solicitor, Allegheny County (PA) • Nicholas Palos, Support Magistrate, Kings County (Brooklyn, NY) Family Court • Rich Narcini, Chief, Child Support Enforcement, New Jersey Judiciary

  2. OBJECTIVES OF PRESENTATION • Address issues of notice and due process requirements in order to proceed to court based enforcement • Spark discussion as to whether recent developments have resulted in a more favorable environment for the non-paying party where the case presents enforcement difficulties • Explore some lesser used remedies which may lead to effective court based enforcement against self-employed individuals.

  3. METHODOLOGY • An individual jurist will discuss one of the objectives. • The remaining panelists may also add to the initial discussion from their own state’s perspective • The panelists encourage audience participation. Please ask your questions or offer your comments.

  4. SERVICE OF PROCESS

  5. It all begins withService of Process The plaintiff shall furnish the person making the service with such copies of the summons and complaint as are necessary. Service shall be made as follows: Upon an individual other than an unmarried infant or an incompetent person, by delivering a copy of the summons and of the complaint to the individual personally, or if he or she evades or attempts to evade service, by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, whose name shall appear on the proof of service, or by delivering the copies to an agent authorized by appointment or by law to receive service on behalf of the individual served.

  6. It all begins withService of Process • Service by mail of a summons and complaint upon a defendant may be made by the plaintiff, the plaintiff's attorney or by any person authorized by statute. ….Such person shall send, postage prepaid, a certified copy of the summons and a copy of the complaint by registered return receipt or certified return receipt mail to the defendant. ….The original summons shall be used for return of service of process pursuant to Rule 4.03(2). Service by mail shall not be the basis for the entry of a judgment by default unless the record contains a return receipt showing personal acceptance by the defendant or by persons designated by Rule 4.04 or statute. …

  7. It all begins withService of Process When service of a summons, process, or notice is provided for or permitted by registered or certified mail under the laws of Tennessee and the addressee or the addressee's agent refuses to accept delivery and it is so stated in the return receipt of the United States Postal Service, the written return receipt if returned and filed in the action shall be deemed an actual and valid service of the summons, process, or notice. Service by mail is complete upon mailing. For purposes of this paragraph, the United States Postal Service notation that a properly addressed registered or certified letter is “unclaimed,” or other similar notation, is sufficient evidence of the defendant's refusal to accept delivery.

  8. Dedicated IV-D Warrant Officers • Employed by the Court. • Dedicated full time to serving only IV-D process • Have the authority to execute arrest orders. • Unique uniforms that are recognized in the community. • Hard working, Relentless. Operate under performance measures. • Have access to state computer for updated locate information. • Have access to the criminal justice information system. • Returns are full of valuable information.

  9. When the Respondent evades service!! One way to serve by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, whose name shall appear on the proof of service, But what do you do when the person at the home says the Respondent doesn’t live there…..and the petitioner says she saw him there yesterday?? Another approach is to issue a citation for contempt to the person at the door.

  10. Leading Attachment In addition to serving a summons Tennessee provides another method of serving a citation for contempt. We call it the “Leading Attachment”. This statutory tool is helpful especially for a Respondent who has a history of contempt or a history of not appearing.

  11. Leading Attachment • T.C.A. 36-5-101(f)(2)….if a parent is more than thirty (30) days in arrears, the clerk of the court may, …, issue a summons or, in the discretion of the court, an attachment for such parent, setting a bond of not less than two hundred fifty dollars ($250) or, in the discretion of the court, up to the amount of the arrears, for such other proceedings as may be held in the matter. In addition, the court may, at any time, require an obligor parent to give security by bond, with sufficient sureties approved by the court, or, alternatively, in the absence of the judge from the court, approved by the clerk of the court, for payment of past, present, and future support due under the order of support. If the obligor parent thereafter fails to appear or fails without good cause to comply with the order of support, such bonds may be forfeited and the proceeds from the bonds paid to the court clerk and applied to the order of support.

  12. Child Support Hotline Because we have dedicated IV-D warrant officers they are able to work beyond the traditional shift. We have one officer on call at all times. For the hard to serve individuals we give the petitioner a “Hotline Card” . This number can be used 24/7 to serve or arrest a respondent.

  13. Child Support Hotline

  14. HAS THE PENDULUM SWUNG TOO FAR?

  15. INCARCERATION • Nash v. Herbster, 932 A.2d 183 (Pa. Super. 2007) • Plunkard v. McConnell, 962 A.2d 1227 (Pa. Super. 2008)

  16. Unemployment • Pa. Rules of Civil Procedure 1910.19(f) • Modify or Terminate a charging order if: • order cannot be enforced under state law • Obligor is unable to pay, has no known income or assets • There is no reasonable prospect that obligor will be able to pay in the foreseeable future

  17. Low income obligors • Pa. Rules of Civil Procedure 1910.16-2(e)(1)(C) • If income is no greater than $867.00 per month, Court may order support only after considering the obligor’s actual living expenses

  18. Court Required Employment Search • Court may require obligor to seek employment through a court sanctioned employment program • If the Debtor refuses to comply with requirement. . . . .

  19. Court Required Employment Search • Court may sentence the non-compliant individual to a period of incarceration for “indirect criminal contempt” • This applies even if the directive to participate in the court-sanctioned employment program is made prior to the establishment of an order of support

  20. ENFORCING AGAINST THE SELF-EMPLOYED

  21. Enforcing support obligations against the self-employed provide unique challenges • Income executions may be ineffective depending on the structure of the obligor’s business • Sole Proprietorship (Schedule C filer) • Partnership • Corporation • Subchapter S • Subchapter C • Incarceration may be self-defeating • Coercive purpose • May actually trigger closure of business

  22. Remedies which court may use to enforce support obligations against self-employed individuals • Sequestration of Property • Undertaking or Performance Bond • Probation Where the Court finds a Willful Failure to Comply In Any Proceeding

  23. Sequestration/Separation of Property • N.Y. Fam. Ct. Act 457 • 4 Conditions must be met • An order of support is made under this article, AND • Obligor has failed to obey it, AND • Either leaves or threatens to leave the state , AND • An application for an order of sequestration is made. • Property being sequestered must be within the state. • Real and Personal Property are subject to sequestration

  24. Sequestration/Separation of Property • N.Y. Fam. Ct. Act 429 • Order of sequestration may be made at any time during a proceeding under Article 4 of the Family Court Act • If the respondent is not within the state, or cannot be found therein, or is concealing himself or herself therein, so that process cannot be personally served upon the respondent, • Order or orders directing the sequestration of property, both real and personal and whether tangible or intangible, within the state may made without notice. • Appoint a received thereof, or by injunction or otherwise take the same into its possession and control. • Property and income generated by the property • Funds used to support children of marriage or spouse • If income generated by property is insufficient to meet obligation. Court may permit receiver to mortgage or sell the property • In the case f real property, court may direct spouse to occupy property rent free • Permits court to direct chattel to be turned over to occupying spouse

  25. Undertaking • Surety for performance • Governed by N.Y. Family Court Act 471 et seq. • Written undertaking with sufficient surety approved by the court; OR • Cash posted to secure compliance. • A definite period, not to exceed three years . • Principal of such undertaking shall not exceed the total payments for support required for three years. • May be extended beyond term for good cause shown.

  26. Probation • Governed by N.Y. Family Court Act 456 • When the order is entered • After a finding that failure to comply was willful • May last for as long as an order of support, order of protection or order of visitation applies • N.Y. Family Court Act 454(3)(c) references the Criminal Procedure Law • Probation governed by Article 410 of the Criminal Procedure Law • Must specify the conditions of probation • Written copy of conditions must be given to person placed on probation

  27. Contact Us Rich Narcini Nicholas Palos Rich.Narcini@judiciary.state.nj.usnpalos@courts.state.ny.us Rosalyn Guy-McCorkle W. Scott Rosenberg Rosalyn.GuyMcCorkle@AlleghenyCounty.USscottrosenberg@jis.nashville.org

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