Fine v. Fine

• Decision Date: 27 November 1970
• Parties: * Petitioner, v. James FINE, Respondent. Family Court, City of New York, New York County
• Court: New York Family Court

Page 725

316 N.Y.S.2d 725

65 Misc.2d 87

In the Matter of a Proceeding for Support under Article 4 of

the Family Court Act, Sadie FINE, ^* Petitioner, v. James FINE, Respondent.

Family Court, City of New York, New York County.

Nov. 27, 1970.

[65 Misc.2d 88] Shyleur Barrack, Legal Aid Society, New York City, for petitioner; Felice K. Shea, New York City, of counsel.

David B. Lubash, Jamaica, by Jenow Cohen, for respondent.

DECISION AND ORDER

JUSTINE WISE POLIER, Judge.

The petitioner and the respondent were married in 1962. In 1965, the petitioner then pregnant with a child who did not survive initiated an action for support in the Family Court. At a hearing held on December 16, 1965, the respondent was represented by private counsel and the petitioner by the Corporation Counsel. The parties stipulated to the marriage and that the petitioner was expecting a child by the respondent in February 1966. The parties were then separated. The court found that the petitioner was entitled to separate support on a means basis. An order of $35 weekly was then entered by consent. The case next appeared before the Family Court on September 23, 1966 when the court issued an order of protection for one year under which the respondent was 'forbidden to approach, communicate with, molest, threaten or assault petitioner'. There were twelve subsequent hearings for enforcement of the support order and for payment of counsel fees between 1967 and 1970.

On May 25, 1970 the respondent secured a judgment of divorce 'because of the continuous abandonment of the plaintiff (respondent in this case) by the defendant (petitioner in this case) for a period in excess of two years.' Supreme Court, Bronx County, Index Number 8676/1968. The Findings of Fact, entered on that date, include: 'Seventh: That the defendant wilfully and wrongfully and without cause, abandoned the plaintiff in or about August of 1965.' The Supreme Court's finding, thus, is in direct conflict with the finding of this Court made on December 16, 1965 that the petitioner was entitled to separate support from the respondent and the order entered on a means basis with the consent of the respondent following a hearing in which the respondent was represented by counsel.

This Court has no knowledge of whether the Supreme Court was made aware of the hearing of December 16, 1965, the findings of this Court on that date, the order entered on a mean basis by consent, or the subsequent order of protection issued by this Court on September 23, 1966. The Supreme Court has exclusive jurisdiction in divorce and the findings and judgment can be modified only by the Supreme Court.

The facts in this case do, however, raise the question whether the doctrine of Res judicata, the law of the case, or the doctrine of a collateral estoppel should not be applied where the parties are the same, the proof would be the same, and where the facts found by a court of record before whom the case was properly presented constituted the basis for a determination of the same issues!

The question of what is or should be regarded as Res judicata has been the subject of many decisions and much dictum. The New York Court of Appeals has held:

'It is a well established rule that, where a matter has been submitted to an authorized judicial tribunal, its decision thereon is final between the parties until it has been reversed, set aside, or vacated; and the rule of Res adjudicata applies to all judicial determinations, whether made in actions or in summary or special proceedings, or by judicial officers in matters properly submitted for their determination.'

Culross v. Gibbons, 130 N.Y. 447 (1892) at p. 454, 29 N.E. 839, at p. 841.

Subsequently, the New York Court of Appeals reviewed the question of Res judicata in a decision involving marital status. The court, citing Culross v. Gibbons, Supra, quoted:

'The rule of Res adjudicata applies to all judicial determinations, whether made in actions, or in summary or special proceedings, or by judicial officers in matters properly submitted for their determination.' See, Bannon v. Bannon, 270 N.Y. 484, 490, 1 N.E.2d 975, 978. (1936) reversing 245 App.Div. 521, 283 N.Y.S. 140.

In a review of decisions involving the question of Res judicata, the courts have repeatedly focused in whether the prior adjudication the same issue between the same parties was squarely before the court. Thus, matters which were considered only collaterally or incidentally have been excluded as not Res judicata. In Barrett v. Miner, 119 Misc. 230, 196 N.Y.S. 175 (1922) the court held that a decree by the Surrogate's Court granting letters of administration to an adopted daughter is not Res judicata on the question of specific performance of a contract favoring a person regarded as a 'son' by testator. The court stated that to invoke the doctrine of Res judicata, it was necessary to show 'that the precise question here involved was raised and determined in the Surrogate's Court.' (P. 238, 196 N.Y.S. p. 182) see also, Klee v. Klee, 187 App.Div. 925, 175 N.Y.S. 908 (1919) reversing Sup., 171 N.Y.S.632 (1918).

The doctrine that where the same issue between the same parties was properly raised before an appropriate court the determination must be regarded as res judicata, unless reversed or set aside has, however, not been followed in regard to decisions by the New York State Family Court, or its predecessor court, the Domestic Relations Court of the City of New York. Examination of the cases suggests that the doctrine of Res judicata was whittled down by various courts in order to achieve what the courts regarded as equitable results.

Thus in an appeal from an order of the Municipal Court denying an ex-wife's motion for a summary judgment for arrears that had accrued under a California decree of divorce, the decision was reversed. The court held that a monthly ordder for a lesser amount by the Domestic Relations Court under the Uniform Support and Dependents Laws was no bar to an action on arrears and that the California decree was entitled to full faith and credit. The court stated: 'Because of the narrowly circumscribed jurisdiction of the Domestic Relations Court, its support order is not binding on the parties in later litigation in another court * * *. 'Res judicata may not prevail. " Morse v. Morse, 3 Misc.2d 163, 166, 153 N.Y.S.2d 957, 960 (1956).

In a case where a wife moved in the Civil Court for a summary judgment to recover arrears due under support orders entered by Pennsylvania and New Jersey courts, the court in New York held that cancellation of arrears by the Family Court only limits the amounts that the Family Court would enforce, but did not modify arrears that had vested under the order of a sister state. In denying the motion to dismiss the action for such arrears, on the ground that the Family Court order cancelling the arrears rendered the matter Res judicata, the court referred to the Family Court as a court of limited jurisdiction and stated: 'In any event, orders of the Family Court are not Res judicata.' Smith v. Smith, 48 Misc.2d 895, 899, 266 N.Y.S.2d 302, 307 (1965).

This decision was in accord with an earlier decision of the Appellate Division which reversed a lower court decision denying judgment to a wife in an action for the amount due under a separation agreement, on the basis of a decision of the then Domestic Relations Court of the City of New York. Solomon v. Solomon, Sup., 120 N.Y.S.2d 587 (1953). In a Per curiam, decision the Appellate Court, which reversed the lower court and directed judgment for the plaintiff-wife stated:

'As the proceeding in the Family Court was in its substantive nature a summary prosecution for a public tort, in the present action for the amount due and unpaid to plaintiff under the separation agreement, it was neither an estoppel nor Res adjudicata nor a bar thereto on the claim of being based on the same facts.'

In this decision, the court cited Loomis v. Loomis, 288 N.Y. 222, 42 N.E.2d 495 (1942), which has been repeatedly cited as the leading case in this area. Loomis, was again cited in Tcholakian v. Tcholakian, 29 A.D.2d 848(5), 287 N.Y.S.2d 920 (1968) which affirmed an order for support entered by the Family Court which had held a Mexican decree of divorce invalid. In affirming the Family Court order, the Appellate Court stated: SU 'The incidental determination by the Family Court that the Mexican divorce decree is invalid is not Res judicata in the action pending between the parties in the Supreme Court (Loomis v. Loomis, 288 N.Y. 222, 42 N.E.2d 495), and the instant disposition is without prejudice to the maintenance of that action.'

In Loomis, the Court of Appeals reversed a decision of the Appellate Division, 262 App.Div. 906, 28 N.Y.S.2d 809 which had affirmed a decision of Special Term granting a motion by the defendant to 'dismiss an amended complaint to secure a declaratory judgment that the parties were husband and wife and that foreign decree of divorce obtained by the husband was null and void. In that case the Domestic Relations Court of the City of New York had in 1939 vacated an order of support for the petitioner on the ground that the foreign decree of divorce procured by the husband was valid. In reversing the decision of the lower courts, the Court of Appeals held that:

(1) The determination of whether the parties before the Domestic Relations Court are husband and wife was 'incidental to the exercise of any jurisdiction. For that limited purpose there is jurisdiction of the subject matter of the marriage.' (288 N.Y., p. 224, 42 N.E.2d p. 496).

(2) The determination of whether the parties before the Domestic Relations Court are husband and wife is final until a different determination is made.

(3) Such determination 'is not binding on the parties in an action in the Supreme Court in which there is directly involved the question whether the same marriage exists or has been terminated.' (P....