Erdt v. Erdt
| Decision Date | 14 January 1974 |
| Citation | 77 Misc.2d 236,353 N.Y.S.2d 600 |
| Parties | Stepania ERDT, Petitioner, v. Louis ERDT a/k/a Ert, Respondent. |
| Court | New York Family Court |
Legal Assistance Program/Legal Aid Bureau of Buffalo, Inc., for petitioner; Norman S. Rosenberg, Buffalo, of counsel; Robert Constantine, Law Student, with permission of the Court.
Theodore V. Mikoll, Buffalo, for respondent.
On November 14, 1973 the petitioner filed a petition for support against the respondent alleging that she is the wife of the respondent and that he has, since on or about January 1, 1960, refused and neglected to provide fair and reasonable support for her. The respondent moved to dismiss the petition on a number of grounds and on December 20, 1973 the motion was argued at which time affidavits were filed and some testimony was taken.
The uncontested facts appear to be as follows:
The parties were married at Rodziechow, Poland on March 3, 1933. The children of the marriage are now all grown and emancipated. The respondent left Poland in 1942 because of World War II. He eventually arrived in Buffalo, New York, in the early 1950's. He kept contact with the petitioner by mail indicating that he planned to arrange for her to join him in the United States. The contacts gradually diminished over a period of about ten years. During this time the respondent became a United States citizen. On October 14, 1966 he secured a divorce from the petitioner in the State of Chihuhua, Mexico, and subsequently remarried. The petitioner is a Polish citizen. She came to the United States in 1970 on a visitor's permit, sponsored by her son who had moved to Buffalo in 1964. Her stay has been extended on a number of occasions, the last time apparently because of the pendency of these proceedings.
The respondent has produced a certified copy of his Mexican divorce and moves to dismiss the petition on the ground that the petitioner is no longer his wife and thus no longer entitled to support. He further argues that the petitioner, a foreign national, cannot bring suit in Family Court for the relief requested.
Initially, the respondent argues that since the petitioner is not a citizen or resident of this state and the marital res does not exist in this state, this court cannot or should not accept jurisdiction. He cites the case of Morlock v. Morlock, 57 Misc.2d 688, 293 N.Y.S.2d 253, a case decided in this very court by acting Family Court Judge Alonzo J. Prey, and the case of Strobl v. Sawicki, 41 Misc.2d 923, 247 N.Y.S.2d 12.
Judge Prey's decision denying jurisdiction in the case of a non-resident petitioner was based on the fact that the Family Court Act did not expressly give such persons the right to file a petition as well as concern for the difficult problems he foresaw in developing facts. The petitioner in the Morlock case was not before the court. He also relied on the Strobl case which referred to the Uniform Support of Dependents Law and suggested that reciprocity be shown between the non-resident's state and New York state. This question has been thoroughly analyzed by Family Court Judge Nanette Dembitz in a recent decision, Ratner v. Ratner, 73 Misc.2d 374, 342 N.Y.S.2d 58. This court finds itself in agreement with Judge Dembitz' decision especially since, in the instant case, the petitioner herself is before the court. (While the Ratner case was a child support case we can find no reason for adopting a different rule when the question is support of a wife).
Section 421 of the Family Court Act permits the respondent to be sued in this court and places no restriction on the petitioner's residence. While this merely settles the question of venue (Caplan v. Caplan, 30 N.Y.2d 941, 335 N.Y.S.2d 693, 287 N.E.2d 385), we can find no binding authority or persuasive argument for prohibiting non-resident petitioners access to our court to enforce the respondent's clearly defined obligation. The courts of this state have not usually adopted an insular mentality to protect their citizens in such circumstances. Further, there is no indication that the Uniform Support of Dependents Law was meant to be pre-emptive in this area.
Again it is important to point out that the petitioner has actually appeared in this court. This is not a case where the petitioner picked this court to suit her own convenience. It is, indeed, the only court in the world where she could seek support from the respondent. It would seem that even the Strobl case would approve jurisdiction when the non-resident petitioner appears before the court.
The respondent argues that even if this...
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