Blouin v. Dembitz, 72 Civ. 4599.

• Citation: 367 F. Supp. 415
• Decision Date: 30 March 1973
• Docket Number: No. 72 Civ. 4599.,72 Civ. 4599.
• Parties: Joseph E. BLOUIN, Jr. and Fred Griese, Plaintiffs, v. Hon. Nanette DEMBITZ et al., Defendants.
• Court: U.S. District Court — Southern District of New York

367 F. Supp. 415

Joseph E. BLOUIN, Jr. and Fred Griese, Plaintiffs, v. Hon. Nanette DEMBITZ et al., Defendants.

No. 72 Civ. 4599.

United States District Court, S. D. New York.

March 30, 1973.

Brashich and Finley by Deyan Ranko Brashich, and Edith Blumberg, New York City, for plaintiffs.

Louis J. Lefkowitz, Atty. Gen., of N. Y. by Robert S. Hammer, Asst. Atty. Gen., New York City, for defendants.

MEMORANDUM AND ORDER

BRIEANT, District Judge.

Plaintiffs, errant husbands, seek by this action, instituted pursuant to 42 U. S.C. § 1983, to test the constitutionality of New York statutes, and judicial procedures developed thereunder by defendant Family Court Judges of the State of New York, and their clerks and employees.¹

They seek damages, and preliminary and final injunctive relief against defendants, preventing them from "effecting or causing to be effected the arrest or incarceration of Plaintiffs, compelling Plaintiffs or causing Plaintiffs to be compelled to involuntarily appear before the Family Court . . ., threatening Plaintiffs, or causing Plaintiffs to be threatened with arrest or incarceration, and subjecting Plaintiffs or causing Plaintiffs to be subjected to the deprivation of rights, privileges or immunities secured by the Constitution and laws." (Amended Complaint, ¶ III.)

Plaintiff Blouin is a resident of New Jersey who has permanent employment in New York City. Plaintiff Griese describes himself in his complaint as a citizen of New York who is temporarily residing in New Jersey, but employed in New York City. Blouin's ex wife, and Griese's wife, who seek support money from them through the New York Family Court, are not parties here. They reside, respectively, in Arizona, and in Ontario, Canada.

Hearings were held on November 2, 1972, December 6, 1972 and again on March 2, 1973. The conduct complained of was undertaken by the Family Court in the regular course of its judicial proceedings to adjudicate the support rights of non-resident dependents of plaintiffs, pursuant to the Uniform Support of Dependents Act. New York Family Court Act, § 411, New York Domestic Relations Law, Article 3-A, McKinney's Consol.Laws, c. 14 Such uniform reciprocal legislation is in effect in New York, Arizona and the province of Ontario, Canada, and permits a destitute dependent in one jurisdiction to apply there for a support order, to be adjudicated and enforced in another reciprocal jurisdiction where the absconding husband or father is found.

The factual situation affecting the two separate plaintiffs differs in no material respect, except that Blouin's former wife initiated her application for support in Arizona. Griese's wife and infant issue are, apparently, sojourning in Canada and have sought the assistance of a competent court in the Province of Ontario.

The New York statute § 31(1) Domestic Relations Law includes any province or territory of Canada as a foreign jurisdiction in which support proceedings may be commenced for adjudication and enforcement by the New York Family Court where respondent is found in New York.

We dispose immediately of plaintiff Griese's suggestion that permitting a Canadian support petition to be the subject of New York proceedings for adjudication of rights under the Uniform Act, violates the constitutional inhibition against a state entering into treaties with a foreign country. (Amended Complaint, ¶ XXXI-XXXII.)

Such a statute having reciprocal effect New York Domestic Relations Law, Article 3-A, and particularly § 31 thereof, which grants to citizens of a foreign jurisdiction the same procedural remedies in New York courts as the foreign state grants to our citizens is not a compact with a foreign country, and does not violate Article II, Section 2(2) of the Constitution, or any treaty or other paramount federal law. Clark v. Allen, 331 U.S. 503, 516-517, 67 S.Ct. 1431, 91 L.Ed. 1633 (1947); the statute does not, as applied in this case, disrupt or embarrass our relations with other countries. See Gorun v. Fall, 287 F. Supp. 725, 728 (D.Montana 1968), aff'd. 393 U.S. 398, 89 S.Ct. 678, 21 L.Ed.2d 628 (1968); Zscherning v. Miller, 389 U.S. 429, 88 S.Ct. 664, 19 L.Ed.2d 683 (1968).

On the coming in of verified petitions from the Provincial Court, Family Division of the County of Middlesex, Province of Ontario in the case of Griese, and the Maricopa County Supreme Court of Arizona, in the case of Blouin, defendant Family Court Judges and their servants and agents proceeded in the same manner as that Court does regularly in such cases; a summons was duly issued to each respondent plaintiffs, here requiring him to appear personally before the Family Court.

Such summons and the service thereof, is required by § 427, Family Court Act, which reads as follows:

"Service of summons

(a) Service of a summons and petition shall be made by delivery of a true copy thereof to the person summoned at least three days before the time stated therein for appearance. If so requested by the respondent or by a parent or other person legally responsible for his care, the court shall not proceed with the hearing or proceeding earlier than seven days after such service.

(b) If after reasonable effort, personal service is not made, the court may at any stage in the proceedings make an order providing for substituted service in the manner provided for substituted service in civil process in courts of record.

(c) In a proper case, service of a summons and petition under this section may be effected by mail."

It was conceded at the hearing before me that the Family Court Judges in New York City, burdened as they are by a substantial case load, and limited supporting personnel, have developed the custom or practice of serving all such summonses by mail pursuant to § 427(c) of the Act, quoted above. Apparently they make, or have made, a judicial determination that each such case is "a proper case" within the statute. No effort had been made by defendants to effect personal service of these summonses. Each was served by first class mail, directed to plaintiffs' respective places of business or employment.

Each such summons was actually received within sufficient time to permit compliance and give reasonable notice of the pendency of the support proceedings. On advice of counsel, and believing that the practice being followed by the Family Court infringed upon constitutionally protected rights of due process arising under the Fourteenth Amendment, and enforceable here pursuant to 42 U.S.C. § 1983, plaintiffs did not appear or answer in the Family Court.² Plaintiffs wish to assert a claim that the Family Court may not exercise jurisdiction over them, constitutionally, under the circumstances, without first effecting personal service of the summons, not by actual delivery by a postal employee, but by traditional process server means.

Thereafter, a defendant Judge of the Family Court issued a separate warrant for the arrest of each plaintiff. The warrants were issued pursuant to § 428(a) of the Family Court Act, which reads in relevant part as follows:

"Issuance of warrant; certificate of warrant

(a) The court may issue a warrant, directing that the respondent be arrested, brought before the court, when a petition is presented to the court under section four hundred twenty-three and it appears that

(i) the summons cannot be served, or

(ii) the respondent has failed to obey the summons; or

(iii) the respondent is likely to leave the jurisdiction; or

(iv) a summons, in the court's opinion, would be ineffectual; . . ."

Issuance of a warrant under § 428(a) of the Act is a judicial act. We must accept the construction placed upon this statute by the New York courts. In Dente v. Dente, 4 A.D.2d 1031, 168 N.Y. S.2d 671 (1st Dept. 1957) issuance of such a warrant for arrest in order to acquire personal jurisdiction of a respondent employed within the City of New York, but residing upstate, was sustained after disregard of a summons served, not only by mail, but by mail addressed to respondent's home outside of the City, and therefore outside of the territorial jurisdiction of the Family Court. The Appellate Division held "the Family court was justified in issuing a warrant on this petition, since the summons here was ineffectual (§ 123(d)). But jurisdiction of respondent can be acquired only by service of the warrant within the city."

In Rodoe v. Noneus, 23 A.D.2d 212, 260 N.Y.S.2d 977 (4th Dept. 1965) a different intermediate appellate court in New York criticized the "standard practice to serve the summons and petition by mail" and reversed, where a motion made in Family Court, to vacate service of a warrant, had been denied, and where there was no proof of delivery of the mailed summons. Rodoe was a paternity proceeding, in which service of summons is regulated by a statutory provision (§ 525 of the Act), materially different from the one presently before us. Comparison would indicate that the New York legislature made different provisions for service, consciously, with respect to paternity proceedings, compared with support proceedings.

The scope of judicial inquiry here does not extend to determining whether or not it is, or was, an abuse of discretion for defendants to issue warrants pursuant to § 428 of the Family Court Act in these cases, without first making an effort to effect personal service of a summons, within the City of New York. Nor does it extend to a determination as to whether it is unjustified to adopt what is apparently a standard practice, of mailing summonses to those situated as are plaintiffs, and issuing warrants upon their failure to respond to first class mail service. These are questions of state law which do not rise to the level of calling in question a federally protected right. Rather, we are concerned with the extent of the constitutional power of the state, acting through its legislature and judiciary.

A respondent in Family Court against whom a warrant has been...