| "Kaye —
Year in Review, 1996-1997 Term" |
|
Despite the continued vitality of the common law, unquestionably in modern times the law increasingly has become "statutorified."[34] Today there are statutes on every imaginable subject. Even cases in traditional common-law fields like torts, contracts and property, routinely involve questions of statutory interpretation.[35] Indeed, statutory interpretation has likely become the principal task engaged in by "common law courts" everywhere. My choice of a statutory interpretation case, from among the many we reviewed last term, is Dox v. Tynon,[36] involving a front-page issue today: child support. This case combines both a contemporary life problem and a traditional exercise in statutory interpretation. The issue before the Court of Appeals in Dox was whether a spouse's long delay in seeking enforcement of an award impliedly waived her right to child support. To be precise, the judgment of divorce, including child support, had been entered eleven years before the mother sought enforcement. When petitioner-mother did come into Family Court seeking a money judgment for arrears, the father claimed that she had told him more than a decade earlier that she wanted him out of her life and he had agreed on condition that she would receive no money from him. The trial court, however, did not find that this conversation ever took place. Instead, the issue turned on whether the mother's failure to demand payment or enforce the judgment for so long a period constituted an implied waiver. The answer lay in the New York statutes. The evolution of New York's statutory scheme governing the payment of child support itself reflects the change in societal attitudes toward "dead-beat dads." Early statutes placed the burden of enforcing child support orders entirely on the party entitled to the benefits-typically the mother.[37] As a result, the defaulting spouse could sit by and allow arrears to accumulate until an enforcement proceeding was commenced, and then argue for abatement or annulment.[38] Over the years, however, the Legislature gradually shifted the burden onto the spouse obligated to pay the support.[39] In 1986, the New York State Legislature put child support on a different footing from all forms of support payment. Cancellation of accumulated child support arrears was by law prohibited. Not even good cause for having failed to seek a prospective downward modification could justify annulling a defaulting spouse's child support arrears.[40] Chronicling this statutory evolution, the Court of Appeals rejected the argument that the mother implicitly waived her right to the outstanding child support payments by delaying enforcement. As the Court noted, to have recognized an "implied waiver" here would have produced the result the statute sought to avoid: retroactive modification of child support arrears. Instead, following the statute, parties seeking modification of child support orders must do so prospectively, by application to the court. Volumes could be-and have been-written about the interrelationship among the three branches of government centering on the interpretation of statutes. Plainly, cases would not reach our Court if application of a statute were purely mechanical. No legislature, drafting in the abstract, could possibly foresee the endless variety of questions that arise as statutes are applied to real-life factual situations. Frequently courts construing statutes are called upon to fill gaps and make choices among reasonable interpretations-much like applying, fitting and tailoring judge-made precedents to new facts as part of the common law process. And in both instances-common law decision-making and statutory interpretation-the Legislature is the ultimate policy-maker. Within constitutional limits, the People's elected representatives can adopt, modify or override a court's ruling simply by passing, or amending, a statute. |
 The Historical Society of the Courts of the State of New York |
