- Consolidated Laws - Family Court
PART 7
UNDERTAKING
Section 471. Undertaking for support and cash deposits.
472. Undertaking to be filed.
473. Substitution of surety.
474. Default.
475. Procedure as to defaults.
476. Forfeitures applied to support of petitioner.
477. Surrender of respondent by surety.
478. Termination of surety`s liability.
479. When new security required.
S 471. Undertaking for support and cash deposits. The court may in its
discretion require either a written undertaking with sufficient surety
approved by the court or may require that cash be posted to secure
compliance by the respondent with the order for support for such period.
Such undertaking shall be for a definite period, not to exceed three
years, and the required amount of the principal of such undertaking
shall not exceed the total payments for support required for three years
and shall be so stated in the order for support. After hearing and for
good cause shown, the court may extend an undertaking requirement by
requiring a new undertaking similar to the original undertaking. The
respondent may deposit cash with the clerk, or when the court so orders,
with the support collection unit designated by the appropriate social
services district, when the order for support directs payments to such
unit. When such cash has been deposited with the support collection unit
and the respondent fails to make any payment, when due, within such
period, payment shall be made by the support collection unit to the
petitioner out of such cash. When cash is posted as security, as herein
provided, the person or persons so posting such cash shall at the
expiration of the period for which such security shall have been ordered
be entitled to the return of such cash less any amount which shall have
been paid therefrom to the petitioner by reason of any default or
defaults in payments on the part of the respondent. The form of the
undertaking and the form and manner of justification of the surety shall
conform to the rules of court.
S 472. Undertaking to be filed. If the property securing the
undertaking consists of real estate, the undertaking shall be filed with
the county clerk of the county in which the real estate is located and
the same shall constitute a lien upon the real estate specified in the
undertaking. The county clerk of each county is hereby directed to
accept such undertakings for filing and to provide proper and sufficient
books and indexes wherein the same shall be entered.
S 473. Substitution of surety. The court may at any time thereafter,
before or after there has been a default, if all arrears have been paid
in case there shall have been a default on such undertaking, accept a
new undertaking in lieu of the original undertaking, and the court shall
enter an order discharging such undertaking.
S 474. Default. A default in the terms of the order shall constitute a
breach of the undertaking. When there has been a default the court shall
cause an affidavit to be drawn, verified and filed by any person
familiar with the facts. The surety shall thereupon be personally
served, or served by registered mail at the address given in the
undertaking or subsequent address furnished by said surety in writing,
with notice of such default and shall be required to attend at the court
on a day certain and show cause why judgment should not be entered on
the undertaking and the amount thereof applied to the relief of the
petitioner for the amount in default. If the surety appears and pays the
amount in arrears the court may remit the forfeiture. Inability to serve
the surety shall not be prejudicial to the renewal of proceedings
against the respondent.
S 475. Procedure as to defaults. If the surety contests the default
the court shall hear and determine the issue. In the event that the
court finds that a default has been suffered, it shall make an order
specifying the amount in default and forfeiting the undertaking or cash
deposit to the extent of such default. A certified copy of such order
shall be filed in the county clerk`s office with a certified copy of the
undertaking and thereupon the said clerk shall docket the same in the
book kept by the clerk for the docketing of judgments, as if the same
was a transcript of a judgment directed for the amount of such sum in
default. The certified copy of the undertaking and of the order shall be
the judgment record. Such judgment shall be a lien on all of the real
estate and collectible out of the real and personal property of the
surety. An execution may be issued to collect the amount thereof in the
same manner as upon a judgment recovered in any court of record.
S 476. Forfeitures applied to support of petitioner. (a) All sums
collected from the surety by judgment as well as forfeited cash deposits
shall be applied by the clerk of court to the support of the petitioners
for whose benefit the order for support was made. Subsequent defaults
shall be proceeded upon in the same manner until the amount of the
principal of the undertaking or the cash deposited has been recovered in
full.
(b) Where the respondent, or any one in his behalf, shall have
deposited with the court monies as surety for compliance with the terms
of the order of support and the respondent shall have died, the court
may make an order directing the payment to the petitioner of all monies
still in possession of the court in conformance with the order of
support.
S 477. Surrender of respondent by surety. A surety may at any time
surrender a respondent to the court. The respondent shall thereupon be
dealt with as provided in the order for support. If the arrears on the
order for support with interest thereon are paid in full, the court may
make an order discharging the surety of any further liability and
directing the return of the balance of the cash on deposit to the person
entitled thereto.
S 478. Termination of surety`s liability. Whenever the liability on an
undertaking has ceased, the court shall make an order to that effect.
Upon receipt of a certified copy of the order, the county clerk shall
discharge of record the lien of the undertaking.
S 479. When new security required. After an undertaking has been given
or cash has been deposited and it shall appear upon proof by affidavit
either
(a) that a judgment entered upon default can not be collected; or
(b) that the liability of the surety has ceased; or
(c) that the money deposited has been applied in full; or
(d) that personal service cannot be effected upon the surety or the
person depositing the cash; or
(e) if for any reason the court shall find that there is not
sufficient security, the court may issue a summons requiring the
respondent to appear or a warrant for the arrest of the respondent, and
require him to give new or additional security. In default thereof the
court may commit him under the original order in the manner hereinabove
provided.
