Frankel v. Frankel

• Decision Date: 01 February 1990
• Parties: Lila FRANKEL, Respondent, v. Leonard FRANKEL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 608

551 N.Y.S.2d 608

158 A.D.2d 750

Lila FRANKEL, Respondent, v. Leonard FRANKEL, Appellant.

Supreme Court, Appellate Division,

Third Department.

Feb. 1, 1990.

Cohen Law Offices (Nathan Z. Dershowitz of Dershowitz & Eiger, P.C., New York City, of counsel), Wurtsboro, for appellant.

Oppenheim & Meltzer (Stephen L. Oppenheim, of counsel), Monticello, for respondent.

Before KANE, J.P., and MIKOLL, YESAWICH, LEVINE and MERCURE, JJ.

PER CURIAM.

Appeal from an order of the Supreme Court (Bradley, J.), entered April 5, 1989 in Sullivan County, which, inter alia, denied defendant's motion to, inter alia, vacate a default judgment holding him in contempt of court.

In 1975 plaintiff commenced a support proceeding in Supreme Court against defendant under the Family Court Act. Supreme Court directed defendant to, inter alia, pay plaintiff $75 per week in temporary support. In January 1977, defendant, having moved to North Carolina, commenced an action for divorce in which plaintiff appeared and defended. In February 1978, defendant was granted a North Carolina judgment of divorce which made no provision for support of plaintiff, but did note that "maintenance, support and alimony" were awarded by Supreme Court in its 1975 order.

In 1980, plaintiff moved to hold defendant in contempt for failing to make payments required under Supreme Court's 1975 order and for leave to enter judgment for arrears commencing from November 25, 1977 to October 9, 1980. In opposing this motion, defendant argued that the North Carolina divorce judgment divested Supreme Court of jurisdiction in the support proceeding. Initially, Supreme Court ruled in defendant's favor but, in April 1981, one year later, upon plaintiff's motion for reconsideration, the court reversed its decision and found that under North Carolina law defendant's obligation of support continued and that the courts of New York have jurisdiction to enforce that duty. The court also held that defendant must seek leave of court to amend his answer to include the affirmative defense of the North Carolina divorce judgment. Defendant moved to renew or reargue this decision but this motion was denied. His attempt to appeal that ruling to this court was also unsuccessful (Frankel v. Frankel, 87 A.D.2d 658, 450 N.Y.S.2d 438). Defendant did not appeal further.

In 1983, plaintiff again moved to hold defendant in contempt for failure to pay support and for leave to enter judgment. Defendant sought to vacate the April 1981 order, arguing that the North Carolina divorce judgment automatically terminated the temporary support and divested New York courts of jurisdiction. Supreme Court ruled that the previous order was res judicata and defendant could only raise the North Carolina divorce judgment as a defense by amendment of his answer in the original support proceeding. The court also ordered defendant to pay arrears from October 8, 1980 to June 3, 1983. In November 1983, defendant moved for leave, inter alia, to amend his answer to plead the North Carolina divorce judgment as an affirmative defense. This too was denied by Supreme Court and defendant did not appeal.

Plaintiff obtained other orders for arrears in support payments covering June 9, 1983 to January 4, 1985 and January 5, 1985 to April 22, 1988. As to the latter period, defendant did not appear and a default judgment was entered awarding the arrears and holding defendant in contempt for failure to pay support as ordered. Defendant moved to vacate the default judgment on the ground that New York courts did not have jurisdiction to order support. Supreme Court denied the motion in March 1989, holding that the 1981 order was, barring "extraordinary circumstances", the "law of the case", requiring Supreme Court to rule, under that order, that the North Carolina divorce judgment did not terminate the support order. This appeal ensued.

Defendant contends that Supreme Court incorrectly applied the doctrine of the "law of the case" because the doctrine does not "apply to the fundamental question of subject matter jurisdiction" (Green v. Department of Commerce, D.C.Cir., 618 F.2d 836, 839 n. 9). This contention need not be addressed because, even if Supreme Court was bound by the 1981 order, the doctrine of the "law of the case" does not prohibit appellate review of a subordinate court's order (see, Atlas Feather Corp. v. Pine Top Ins. Co., 122 A.D.2d 241, 505 N.Y.S.2d 436; Ennist v. Shepherd, 117 AD2d 580, 498 N.Y.S.2d 52). Consequently, Supreme Court's order, particularly the court's holding on the effect of the North Carolina divorce decree on Supreme Court's temporary support order, is properly reviewable by this court.

Concededly, the temporary order of support of $75 per week for plaintiff in 1975 was made by Supreme Court sitting as a Family Court, and was pursuant to Family Court Act § 412 (see, Kagen v. Kagen, 21 N.Y.2d 532, 289 N.Y.S.2d 195, 236 N.E.2d 475). The 1978 North Carolina divorce judgment that defendant obtained was bilateral, plaintiff having appeared and defended the action. The granting of the divorce would have effectively terminated the temporary support order had the divorce been obtained in New York, because liability for support under Family Court Act § 412 is dependent on the existence of a marital relationship (see, Matter of Medici v. Medici, 53 Misc.2d 826, 827, 279 N.Y.S.2d 910; see also, Matter of Aletha Butts "MM" v. Donald Melvin "MM", 39 A.D.2d 995, 333 N.Y.S.2d 581; Matter of Russo v. Rizzo, 96 Misc.2d 485, 488, 409 N.Y.S.2d 101). By the same reasoning, if the divorce was obtained in a sister state, was bilateral and that state's law similarly terminated the obligation of support upon divorce, the Family Court temporary support order would have been extinguished (see, Lynn v. Lynn, 302 N.Y. 193, 202-204, 97 N.E.2d 748, cert. denied 342 U.S. 849, 72 S.Ct. 72, 96 L.Ed. 641; see also, Greschler v. Greschler, 51 N.Y.2d 368, 376, 434 N.Y.S.2d 194, 414 N.E.2d 694). As a matter of New York law, a prior Family Court order of support only must survive a foreign divorce when the court in the forum state had not acquired in personam jurisdiction over the spouse granted support in New York (see, Hunter v. Hunter, 41 A.D.2d 772, 341 N.Y.S.2d 953; Matter of Slemons v. Slemons, 28 A.D.2d 634, 280 N.Y.S.2d 276), a situation not present in this case.

Even if the foreign divorce was bilateral, as it was here, if the divorce court did not dispose of the issue of spousal maintenance either by granting it or expressly denying it, also the case here, the prior Family Court or other New York order of support will survive if, under the law of the divorce forum state, such a prior order would survive the divorce, a result dictated by the Full Faith and Credit Clause (U.S. Const., art....