Holloway v. Holloway

• Decision Date: 28 December 2006
• Docket Number: 501011.
• Citation: 827 N.Y.S.2d 729,2006 NY Slip Op 09984,35 A.D.3d 1126
• Court: New York Supreme Court — Appellate Division
• Parties: BETTE M. HOLLOWAY, Respondent, v. BRIAN D. HOLLOWAY, Appellant.

35 A.D.3d 1126

827 N.Y.S.2d 729

2006 NY Slip Op 09984

BETTE M. HOLLOWAY, Respondent, v. BRIAN D. HOLLOWAY, Appellant.

501011.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided December 28, 2006.

Appeal from an order of the Supreme Court (Canfield, J.), entered October 12, 2005 in Rensselaer County, which, inter alia, granted plaintiff's motion to enforce the maintenance provisions of a prior judgment.

KANE, J.

The parties' 1997 judgment of divorce incorporated, but did not merge, their prior stipulation of settlement. In the stipulation, defendant obtained custody of the parties' four children and agreed to pay plaintiff maintenance until, among other things, plaintiff failed "to exercise any access to her children for 45 continuous days." Both parties and the children were New York domiciliaries at the time of the divorce, but plaintiff moved to Massachusetts soon afterward. In June 2004, defendant moved to Florida with the children, without first informing plaintiff or any court. Although plaintiff visited with the children once in July 2004, she did not see the children from July 21, 2004 to September 10, 2004, a period of more than 45 continuous days. Soon thereafter, defendant ceased his maintenance payments and sent plaintiff a letter informing her that he was doing so under the above-cited provision.

Plaintiff moved, within the divorce action, to enforce the stipulation and compel defendant to resume making maintenance payments, as well as for modification of the judgment to include future visitation-related travel expenses. Defendant cross-moved for dismissal of plaintiff's motion based on lack of personal jurisdiction and forum non conveniens. Supreme Court denied defendant's cross motion, granted plaintiff's motion by directing defendant to resume maintenance payments, awarded plaintiff $10,800 in unpaid maintenance and modified the prior judgment by requiring defendant to pay all of plaintiff's visitation-related travel expenses. Defendant appeals.

Supreme Court lacked jurisdiction to modify the child support aspects of the divorce judgment. The court lost continuing, exclusive jurisdiction to modify the child support provisions when both parties and the children all moved out of state (see Family Ct Act § 580-205 [a] [1]; 28 USC § 1738B [d]; Matter of Auclair v Bolderson, 6 AD3d 892, 894-895 [2004], lv denied 3 NY3d 610 [2004]; Mamberg v Epstein, 272 AD2d 200, 200 [2000]; Matter of Hopkins v Browning, 186 Misc 2d 693, 694-695 [2000]). As the court lacked subject matter jurisdiction to modify child support, we must reverse that portion of Supreme Court's order which modified the judgment by requiring defendant to pay for plaintiff's travel expenses associated with visitation.

Courts have continuing, exclusive subject matter jurisdiction over a spousal support order throughout the existence of that support obligation (see Family Ct Act § 580-205 [f]). The Legislature has provided a mechanism for parties to enforce, although not to modify, payment provisions of a matrimonial proceeding (see Domestic Relations Law § 244). Such enforcement is specifically treated as a continuation of the matrimonial action rather than a new action, thus preserving personal jurisdiction over the parties to protect these important enforcement rights (see Gunsburg v Gunsburg, 173 AD2d 232, 232 [1991]; Strand v Strand, 57 AD2d 1033, 1034 [1977]; EB v EFB, 7 Misc 3d 423, 428 [2005], affd sub nom. Bjornson v Bjornson, 20 AD3d 497 [2005]; cf. Haskell v Haskell, 6 NY2d 79, 81-82 [1959], cert denied 361 US 876 [1959]).^*

At issue here was enforcement, not modification, of the maintenance provision of the parties' divorce judgment. Defendant contends that Supreme...