Cahn v. Cahn

• Citation: 117 Misc.2d 1054,459 N.Y.S.2d 657
• Parties: Alice A. CAHN, Plaintiff, v. Frederick W. CAHN, Defendant.
• Decision Date: 02 June 1982
• Court: New York City Court

Page 657

459 N.Y.S.2d 657

117 Misc.2d 1054

Alice A. CAHN, Plaintiff, v. Frederick W. CAHN, Defendant.

Civil Court of the City of New York,

Bronx County, Special Term,

Part I.

June 2, 1982.

Axelrod & Warburgh, New York City, for plaintiff; Charles F. Axelrod, New York City, of counsel.

Philip Sherwood, Greenhaus, for defendant.

ALAN J. SAKS, Judge.

Plaintiff, Alice A. Cahn, the former wife of defendant Frederick W. Cahn, commenced this action to enforce a 1970 Illinois judgment for child support arrears. Both parties move for summary judgment. The Court holds that the Illinois judgment is entitled to full faith and credit but withholds leave to enter summary judgment pending allowing defendant an opportunity to reopen the Illinois judgment.

The parties had lived as husband and wife in Illinois. They were divorced in June 1962 in Illinois. Custody of their two children was awarded to the wife.

In August 1962, Mrs. Cahn commenced a proceeding in Illinois against her ex-husband, then and now a New York resident, under the Illinois Uniform Reciprocal Enforcement of Support Act, Ill.Ann.Stat. ch. 40 § 1201 et seq., that state's counterpart to New York's Uniform Support of Dependents Law (USDL), Domestic Relations Law, Art. 3-A, § 30 et seq., to secure support for the two children. Illinois, as "initiating" state, forwarded the petition to New York, the "responding" state, where it was docketed in the Family Court, New York County ("The USDL action"). See generally, Matter of Huffman v. Huffman, 93 Misc.2d 790, 403 N.Y.S.2d 850; "Legislation: New York Uniform Support of Dependents Law--Its Operation to Date," 30 St. John's L.Rev. 309 (1956). Defendant's obligation was set at $14.00 a week per child.

The following year, 1963, Mr. Cahn personally appeared in Illinois and petitioned the Illinois court for enforcement of his visitation rights, and Mrs. Cahn cross-moved for increased support. The court ordered Mrs. Cahn to honor Mr. Cahn's visitation rights and ordered him to continue support payments at the same level "until further order of this Court." Jurisdiction of the matter for the purpose of enforcement was retained by the Illinois court.

With the exception of a brief period in 1963, Mr. Cahn's visitation rights were not honored. Nevertheless, he continued to make payments through the New York City Family Court Support Bureau until 1968. Finally, upon his petition, that Court conditioned his obligation to continue support upon his right to see his children, and by order dated October 28, 1968, suspended its prior USDL support order, returned all monies it was holding to him and sent a confirming letter to the Illinois Reciprocal Support Unit, which had been forwarding payments to Mrs. Cahn.

In 1970, Mrs. Cahn obtained an Illinois default judgment against her ex-husband for $3,388.00. This sum represented the arrears which had accrued after Mr. Cahn had responded to the 1968 New York order by suspending his support payments. It is to be noted that he had neither answered nor appeared in the 1970 Illinois proceeding that eventuated in said judgment.

The parties have called to the Court's attention several subsequent litigational confrontations between them in Illinois. However, those matters are irrelevant to the instant decision, which involves only a suit to enforce the 1970 Illinois judgment. The parties have not alluded to any litigation in New York between the rendition of the 1970 Illinois judgment and the instant action, which was not commenced until 1981. The two children are no longer minors. Because the Illinois judgment was based on defaul the simplified procedure under CPLR Article 54 (Uniform Enforcement of Foreign Judgments Act) is not available. Therefore, a plenary common-law action on a judgment is required.

Defendant now attacks the jurisdiction and authority of the Illinois court, claiming: (1) the 1968 New York order suspending his support obligation modified the prior (1963) Illinois order and was conclusive on the subject of arrears in any later proceeding, and (2) he was never served in the 1970 proceeding.

Discussion

The USDL order suspending defendant's support obligation cannot be construed as a modification of the 1963 Illinois order and is not entitled to enforcement in Illinois.

This conclusion is mandated by the language of New York's USDL, Domestic Relations Law § 41, subd. 1:

"This article shall be construed to furnish an additional or alternative civil remedy and shall in no way affect or impair any other remedy, civil or criminal, provided in any other statute and available to the petitioner in relation to the same subject matter."

The purpose of the Uniform Reciprocal Enforcement of Support Acts is to facilitate the enforcement of support payments for dependent children by providing for collection across state lines. Matter of Huffman v. Huffman, supra. In both New York (Matter of Anonymous v. Anonymous, 44 Misc.2d 721, 725, 255 N.Y.S.2d 122) and Illinois (Armstrong v. Armstrong, 83 Ill.App.3d 1062, 39 Ill.Dec. 417, 404 N.E.2d 1008) the remedy is merely "additional or alternative". The intent is to enlarge dependents' remedies, not diminish them. It is designed to enforce previously entered orders, not modify or terminate them. Coons v. Wilder, 93 Ill.App.3d 127, 48 Ill.Dec. 512, 416 N.E.2d 785. Remedies which are available under any other statute remain unimpaired. Domestic Relations Law § 41, subd. 2.

Other states which have enacted similar statutes agree. Weller v. Weller, 14 Ariz.App. 42, 480 P.2d 379; Zimmerman v. Zimmerman, 131 Ga.App. 567, 206 S.E.2d 583; Illinois v. Sterling, 248 Minn. 266, 80 N.W.2d 13; Salito v. Salito, 107 N.H. 77, 217 A.2d 181; Stubblefield v. Stubblefield, 272 S.W.2d 633 (Tex.Civ.App.). See also 42 A.L.R.2d 768, 776.

A case closely in point to the instant one is Nichols v. Bardua, 74 A.D.2d 566, 424 N.Y.S.2d 288 (2nd Dept.1980). There, the parties were divorced in New York in 1975. Merged into the decree was a stipulation under which the husband was to pay $400 monthly in child support. The decree further provided that the Supreme Court and Family Court were to retain concurrent jurisdiction for the purpose of modifying or enforcing it. Subsequently in 1975, the ex-wife commenced a USDL proceeding in Dutchess County Family Court. The ex-husband answered it in Westchester County, where he was apparently then living. Westchester County Family Court decided it by reducing his obligation to $325 per month. In 1978, the ex-wife commenced a second USDL proceeding in Dutchess County Family Court. By this time, the ex-husband had moved to Connecticut, so it was referred to a Connecticut court. By oral directive, no formal order having been signed, the Connecticut court permitted him to reduce his payments to $260 per month. In 1979, the ex-wife applied in Supreme Court, Dutchess County, by order to show cause, to enter judgment for the arrears alleged to have accumulated under the original divorce decree, calculating his obligation at $400 per month for the entire period since the original decree. The ex-husband claimed the benefit of the two USDL orders, claiming that they had modified his obligations. The Appellate Division rejected that contention, stating:

"We agree with respondent, and with Special Term, that the two USDL proceedings did not in any way impair or reduce appellant's obligation to provide child support in conformance with the provisions of the divorce judgment. With regard to the Connecticut court's directive, we note that Connecticut's Uniform Reciprocal Enforcement of Support Act (the analogue of our USDL) provides (see Conn.Gen.Statutes Ann. former § 17-351, now § 46b-204): 'Application of payments. Any order of support of this state when acting as a responding state shall not supersede any previous order of support issued in a divorce, dissolution of marriage or separate maintenance action, but the amounts for a particular period paid pursuant to either order shall be credited against amounts accruing or accrued for the same period under both.' Accordingly, even if the Court of Common Pleas directive had been reduced to a written order, it could not, under Connecticut law, have constituted a modification of the divorce judgment. (See, also, Banton v. Mathers, 159 Ind.App. 634 ; Campbell v. Jenne 563 P2d 574 [Mont.].) New York's USDL does not contain any provision equivalent to the afore-mentioned Connecticut statute. It should be noted, however, that subdivision 1 of section 41 of the Domestic Relations Law expressly provides that the USDL should be construed as providing an 'additional or alternative civil remedy and shall in no way affect or impair any other remedy, civil or criminal, provided in any other statute and available to the petitioner in relation to the same subject matter.' To construe the Westchester County USDL order as a modification of the divorce judgment would impair respondent's right to seek a money judgment for arrears under the original divorce judgment, a result clearly contrary to the USDL's character as an 'additional or alternative' remedy. We note, moreover, the fundamental unfairness in permitting the court...