Bonnie Lee A. v. Robert A.
| Decision Date | 03 January 1991 |
| Citation | 149 Misc.2d 368,565 N.Y.S.2d 412 |
| Parties | In the Matter of BONNIE LEE A., Petitioner, v. ROBERT A., Respondent. |
| Court | New York Family Court |
Edward Waples, Binghamton, for Bonnie Lee A.
Robert A., pro se.
Respondent filed timely written objections to the Order of the Hearing Examiner, entered November 20, 1990, which by its terms suspended Respondent's petition for modification of a prior support order pending Respondent's appearance before the Court on an as yet unexecuted arrest warrant.
The Order which Respondent seeks to modify, dated March 10, 1989, was entered upon stipulation of the parties. It fixed child support payments and arrears, fixed three alternative emancipation events, directed child support payments be made through the Broome County Support Collection Unit and directed the Respondent to "provide his changes of address at all times should he move from the address last known to this Court by reporting such change in writing" as well as "future changes in employment status ... within five days of any such change ..."
The file reflects that on or about July 25, 1989 the Broome County Support Collection Unit filed a violation petition with Broome County Family Court alleging Respondent failed to obey the Court order of March 10, 1989. The petition was scheduled for a hearing on August 31, 1989. A summons was mailed to Respondent at his last known address. When Respondent failed to appear at the hearing, the matter was referred to Hon. Joseph Esworthy who issued a warrant for Respondent's arrest on September 5, 1989. The warrant remains unexecuted to date.
On October 15, 1990 Respondent filed the instant petition. In it, he alleged a residence of Box 300, APO S.F. 96259. The Petitioner's signature was notarized by Russell Bates, SS6, U.S. Army.
Respondent's petition was scheduled before the Hearing Examiner on November 8, 1990. The Court has reviewed the tape recording of that proceeding.
The hearing examiner initially noted the appearance of Bonnie A. in Court as well as that of Edward Waples Esq., for the Respondent. The hearing examiner inquired as to whether Mr. A. would be present. Mr. Waples instructed the Court his client was residing in South Korea. The hearing examiner then summarized his view by stating, The balance of the record involved a colloquy between counsel and the hearing examiner relating in large part to the propriety of the hearing examiner's viewpoint.
The Order issued by the hearing examiner to which objections were filed, is based upon his decision at the hearing on November 8, 1990.
There is some case law to support the proposition that a resident of a foreign country may litigate support issues in New York where the opposing party is a resident of this state, even in cases where the foreign petitioner makes no personal appearance in our courts during the trial of the issue. Ratner v. Ratner, 73 Misc.2d 374, 342 N.Y.S.2d 58 (N.Y.Co.Fam.Ct., 1973); Strobl v. Sawicki, 41 Misc.2d 923, 247 N.Y.S.2d 12 (Oneida Co.Fam.Ct., 1964); Erdt v. Erdt, 77 Misc.2d 236, 353 N.Y.S.2d 600 (Erie Co.Fam.Ct., 1974). Authority is not uniformly in support of the idea, however, and in all the reported cases it was the child's custodian petitioning the Court.
There is also case law, however, to support the use of an arrest warrant to obtain jurisdiction over a respondent in a civil proceeding for non-support. Blouin v. Dembitz, 489 F.2d 488; 367 F.Supp. 415 (S.D.N.Y., 1973), aff'd, 489 F.2d 488 (2d Cir.,). In Dembitz, Judge Brieant wrote ", where non-residents, regularly or temporarily within the state are concerned, we see no constitutional due process requirement which would prevent the state from obtaining jurisdiction over the defendant ... by arrest...
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