I’ve never really thought about it.
And although not exactly on point, the August 24, 2017 decision of Kings County Family Court Judge Javier E. Vargas in S.G v. B.G. sheds light on some of the issues a court may face when a child support payor his being “hidden.”
The parties were married in May 1993, and had two now-emancipated children. The father had been a successful diamond dealer and jeweler; the mother was a homemaker and caretaker of the children. In 2002, the parties divorced under a judgment that had incorporated a Separation Agreement. The father was to pay child support of $4,004.60 per month, as well as the children’s insurance, tuition and other educational expenses.
The father complied with his child support obligations until 2008 when he was arrested for fraud in “massive gem heists.” He was incarcerated between 2008 and 2011. Upon his release in May, 2011 until May 2014, the father apparently cooperated with the United States government and was purportedly placed in a safe house by the U.S. Witness Protection Program, under which he had assumed a new identity in another state.
The father alleged he was unable to earn any income for a period of four years while in the Program (in 2009 the father made at least one unsuccessful attempt to lower his support obligation). The 2002 Judgment of Divorce Order of Support continued in effect throughout his incarceration and his Witness Protection period. The Father failed to stay current.
In 2014, the mother filed a Family Court Violation Petition, alleging accumulated arrears of over $291,117.38. Support Magistrate Elizabeth Shamahs presided over an evidentiary hearing throughout 2016 and found the father in willful violation of the support order for his failure to adequately prove his financial circumstances. Instead, the father hid “behind the ‘constrains of the Witness Protection Program’ to avoid giving the Court his whereabouts or at least evidence of his employment and earnings. Yet, he admitted that he has not been in supervised relief with the U.S. Marshals Service since May 2014.”
Moreover, the father admitted to working from time to time while the proceeding pending, yet made only two payments of $100.00 each in 2014, and a total of $6,675.26 from April 2015 to November 2016.
Magistrate Shamahs calculated that the father owed arrears totaling $439,394.80, and entered a fifth Money Judgment against the father. The Magistrate also referred the matter assigned to Judge Javier E. Vargas for a confirmation of the willfulness findings, making a recommendation that the father serve a period of six months of incarceration, unless he posted a purge amount of $109,846.20.
On the referral, the mother and the parties’ counsel appeared before Judge Vargas in person; the father appeared from an undisclosed location by telephone, allegedly because of his continued enrollment in the Witness Protection Program. The father’s repeated conclusory reports of his recent financial circumstances were again rejected. At the close of the initial proceeding, Judge Vargas ordered the father to pay $15,000 toward the child support arrears on or before the adjourned date of February 28, 2017, or face immediate incarceration.
With the father’s compliance with that direction not clear, Judge Vargas decided to continue monitoring the father’s compliance with his orders and issued a new order for father to pay $2,000 to the Support Collection Unit on or before the next court date or face incarceration. This the father did. Judge Vargas directed the father to pay $1,000 for court date after that, or face incarceration.
When the parties and counsel appeared on June 5, 2017, the mother informed Judge Vargas that she no longer sought the father’s incarceration, but rather his prompt payment of the arrears. At that time, the Support Collection Unit’s records reflected that the father had paid $1,000 as ordered, but that outstanding arrears still totaled $461,475.
Judge Vargas noted that Family Court Act §454(3)(a) provides that a parent’s evidence of “a failure to pay support, as ordered, shall constitute prima facie evidence of a willful violation.” Once that prima facie showing of willfulness is made, the burden shifts to the respondent-payor to offer competent, credible evidence of his inability to make the required payments. Upon a willfulness finding, “the court shall order respondent to pay counsel fees” for the petitioner, and may “commit the respondent to jail for a term not to exceed six months,” require him/her “to participate on a rehabilitative program,” or place him on probation.
Applying these principles, , Judge Vargas confirmed Magistrate’s Shamahs’ finding of willfulness. The mother had established, by clear and convincing evidence, that the father had willfully and deliberately situated himself in a position to have limited income by claiming that he was still in the Witness Protection Program despite its apparent termination in 2014, and had failed to make reasonable efforts to obtain additional employment or any loans or advances to meet his child support obligations. His current expenses were being paid by some employment as well as other financial help from his family. Judge Vargas concluded that the father had willfully refused to even make a dent in the substantial arrears accumulated toward his children’s support.
Judge Vargas afforded the father several opportunities, by delaying incarceration and imposing payment conditions. Indeed, since December 2016, the father paid a total of $19,456.38. Nevertheless, the father consistently and contumaciously failed to keep current with the Child Support Order, even after it was reduced to $3,122 per month. True to form, the father had only made minimal payments between 2014 and 2016, and voluntarily chose to pay for other expenses. His conclusory claims of limited income and employment did not appear credible.
Finally, Judge Vargas concluded that “the opaqueness with regard to his finances demonstrated by the father during the Magistrate’s proceedings continued unabated.”
Not only has Father been contumaciously reluctant to provide actual evidence of his finances, but he has shown a continued disregard for the court-ordered support by engaging in self-help and unilaterally reducing the support obligation to $285 per month. Such behavior reveals a total lack of respect for the rule of law, his legal obligations to his Children and to this Court. Given Father’s essentially conceded willfulness in failing to pay child support, there is a real concern about the absence of the deterrent effect of imprisonment.
Nonetheless, Judge Vargas honored the mother’s withdrawal of her imprisonment request, but required the father to make monthly payments of $2,000 in order to reduced his exorbitant arrears. As a result, the mother’s application to confirm the Magistrate’s findings and order was granted only to the extent that the father was declared to be in willful violation of the support order, and was placed on probation with the New York City Department of Probation and ordered to pay $2,000 per month in order to satisfy the accumulated arrears to the mother.
Larry B. Margolis, of Brooklyn, represented the father. William Hoffman, of Brooklyn, represented the mother.