Agur v. Wilson

• Decision Date: 24 May 1974
• Docket Number: Docket 73-1529.,No. 869,869
• Citation: 498 F.2d 961
• Parties: Mordecai AGUR, Plaintiff-Appellant, v. The Honorable Malcolm WILSON (as Successor in Office to the Honorable Nelson A. Rockefeller), Governor of the State of New York, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

498 F.2d 961 (1974)

Mordecai AGUR, Plaintiff-Appellant, v. The Honorable Malcolm WILSON (as Successor in Office to the Honorable Nelson A. Rockefeller), Governor of the State of New York, et al., Defendants-Appellees.

No. 869, Docket 73-1529.

United States Court of Appeals, Second Circuit.

Argued March 19, 1974.

Decided May 24, 1974.

Cyril C. Means, Jr., New York City, for plaintiff-appellant.

Burton Herman, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of N. Y., Samuel A. Hirshowitz, First Atty. Gen., of counsel), for defendants-appellees.

Before LUMBARD, FEINBERG and MULLIGAN, Circuit Judges.

MULLIGAN, Circuit Judge:

Plaintiff-appellant Mordecai Agur commenced this action by filing a complaint on his own behalf on December 1, 1971, seeking declaratory and injunctive relief with respect to certain sections of the N.Y. Judiciary Law which the appellant alleged to be unconstitutional. He also sought the convening of a three-judge court. The United States District Court for the Southern District of New York, Lawrence W. Pierce, Judge, dismissed the complaint on March 1, 1973, for failure to raise a substantial federal question. On appeal from this decision, this court granted appellant's request for the appointment of counsel. Affirmed.

The appellant married Margaret Neumann in 1960 and a son was born in 1962. In 1967, Mrs. Agur obtained a Mexican divorce decree which incorporated in its terms a 1966 separation agreement. That agreement provided that Mrs. Agur would have custody of their child until his sixth birthday and that she waived alimony for herself and support for her son.¹ Just prior to the sixth birthday of her son, Mrs. Agur commenced an action in the New York Supreme Court seeking custody of the child as well as $75 per week for his support. She alleged that Agur's emotional state required that she retain custody, asserting that he had threatened both mother and child and that three protective orders had been issued by the Family Court as a result.

Mr. Justice Beckinella, without a hearing, granted Agur a stay of the action and ordered the question to be arbitrated pursuant to the separation agreement, which provided for arbitration according to Jewish religious law in the event of a dispute. The Appellate Division, Second Department, by decision dated April 7, 1969, modified the order, directing that a hearing be held in the Supreme Court on the issues of custody, child support and counsel fees at which evidence of Jewish religious law could be presented. The court further granted Mrs. Agur the right to apply for child support pending the hearing. 32 App.Div.2d 16, 298 N.Y.S.2d 772 (2d Dep't. 1969).

On June 19, 1969, Mr. Justice Morrissey of the Supreme Court entered an order for temporary support which appellant failed to obey. On July 9, Mr. Justice Wegman ordered Agur to comply with this order. Appellant persisted in refusing to pay. By order to show cause returnable on September 8, his former wife, who had by then remarried, moved to hold Agur in contempt of the prior orders. On September 5, Agur, now represented by a new attorney, paid support arrears of $415. The affidavit of his attorney dated September 8 opposed the contempt order on the grounds that Agur had paid all the outstanding sums and that he "assures me that he will continue to do so in the future." The contempt motion was adjourned to September 15th, at which time Agur appeared in person, stating that his new counsel wished to resign. At his request the matter was adjourned to September 18th, the date set for the hearing ordered by the Appellate Division, at which time Agur appeared before Mr. Justice Damiani with his third attorney. Agur's new counsel requested a stay pending appeal of the Appellate Division decision to the Court of Appeals. When this request was denied, counsel, who had presumably been retained only for this purpose, withdrew and Agur then requested that the court adjourn to allow him time to obtain counsel. Upon the denial of this application, Agur refused to participate in the proceedings. Counsel for Agur's former wife proceeded to present evidence of Agur's financial situation and called him as a witness to testify. Agur persisted in refusing to participate and even declined to admit that he was the father of his child. Justice Damiani then denied the application to hold Agur in contempt for failure to make temporary support payments on the ground that Agur had paid the outstanding sums on September 5th.

On September 23, Agur issued a "Notice of Intent to Arbitrate" the dispute. On September 29, Justice Damiani issued an order granting custody of the child to Agur's former wife and giving appellant certain rights of visitation. In addition, appellant was ordered to pay $40 per week for support of the child and $500 for counsel fees. On October 9, appellant issued another "Notice of Intent to Arbitrate." Since appellant failed to make the required support payments, his former wife moved by order to show cause to hold appellant in contempt. Pursuant to her motion, Justice Damiani vacated Agur's notice of intent to arbitrate of September 23 and denied his request to modify the judgment of September 29. By affidavit of November 6, Agur opposed his former wife's motion for contempt and requested that, due to "new circumstances," the matter of support be sent to arbitration or the amount of support ordered be reduced to $15 per week. On November 10, Agur's notice of intent to arbitrate of October 9 was vacated pursuant to motion.

On November 10, Justice Mollen, without a hearing, rejected Agur's objection to the court's jurisdiction and termed his claim of inability to pay the support ordered to be "without merit." He stated that application for reduction of support should in any event be made by independent motion. He then granted Agur's former wife's motion to hold him in contempt and fined him $450 ($200 for support and $250 for counsel fees). A judgment to this effect was issued on November 19. On June 15, 1970, the Court of Appeals dismissed the appeal from the decision of the Appellate Division which sent the matter of custody and support to a hearing. 27 N.Y.2d 643, 313 N.Y.S.2d 866, 261 N.E.2d 903. On the same day, the Appellate Division affirmed without opinion the order of Justice Mollen holding appellant Agur in contempt. 34 App.Div.2d 1107, 313 N.Y.S.2d 967 (2d Dep't). The Court of Appeals dismissed the appeal from this affirmance. 27 N.Y.2d 792, 315 N.Y.S.2d 854, 264 N.E.2d 347 (1970). On August 14, 1970, Justice Mollen ordered that Agur be committed to civil jail.²

The basis of appellant Agur's complaint here is that he was denied a hearing on the question of his liability to pay child support prior to the issuance of the contempt order, and was held in contempt despite the fact that he is impecunious. He contends that certain state statutes permit this result (N.Y. Judiciary Law §§ 753(a) (3), 770, 772 & 774(1)), and therefore violate the equal protection and due process clauses of the fourteenth amendment. He further asserts that the denial of his request for the appointment of counsel to represent him in the contempt proceedings violated the due process clause of the fourteenth amendment.³ Appellant requested a declaratory judgment that the above cited statutes are unconstitutional and an injunction against their enforcement. He also asked that a three-judge court be convened. Appellant stated that he was proceeding pursuant to 28 U.S.C. § 2201 and 42 U.S.C. § 1983, with jurisdiction based upon 28 U.S.C. §§ 1331 and 1343(3) & (4).⁴

The statutes attacked do not expressly require that a hearing be held in all cases. Judiciary Law § 772 provides that on "return of an order to show cause, the questions which arise must be determined, as upon any other motion . ." Section 770 provides that where the husband "appears and satisfys the court or a judge before whom the application may be pending that he has no means or property or income to comply with the terms of the order at the time, the court or judge may in its or his discretion deny the application to punish the husband . . . ." Under these statutes, appellant argues, he was improperly held in contempt without a hearing as to his ability to pay. Since the court need not hold a hearing and has discretion to punish the husband even though he cannot pay, the statutes, he contends, are unconstitutional "as they are written and administered."

At the outset we must determine whether or not a three-judge court is required in this case. Appellant does seek injunctive relief against the enforcement by the defendants, some of whom at least are state officers, of a statute alleged to be in violation of the constitution. He has thus apparently met the requirements for the convening of a three-judge court set out in 28 U.S.C. § 2281. However, we agree with Judge Pierce that a three-judge court is not required here since no substantial question of federal law is involved. Although Agur claims that the statutes are invalid because they do not require a hearing, New York has construed and generally applied them in a contrary fashion.⁵ Under New York law, state judges will be reversed if they fail to hold a hearing when affidavits reveal a genuine question of fact as to the ability of a spouse to pay. E. g., Shkolnik v. Shkolnik, 41 App.Div.2d 523, 340 N.Y.S.2d 70 (1st Dep't 1973); Abbey v. Abbey, 7 App.Div.2d 910, 182 N.Y.S. 2d 845 (2d Dep't 1959); Larotondo v. Larotondo, 285 App.Div. 899, 137 N.Y.S. 2d 866 (2d Dep't 1955); Kruger v. Kruger, 279 App.Div. 808, 109 N.Y.S.2d 779 (2d Dep't 1952); Kirsh v. Kirsh, 279 App.Div. 589, 107 N.Y.S.2d 205 (2d Dep't 1951). Under the circumstances, we believe that appellant's claim that the statute is unconstitutional as written and generally applied is insubstantial and that a three-judge court is therefore not required. United Low Income, Inc. v. Fisher, 470 F.2d 1074 (1st Cir. 1972) (per curiam); New...