Huffman v. Huffman

• Decision Date: 21 March 1978
• Citation: 403 N.Y.S.2d 850,93 Misc.2d 790
• Parties: In the Matter of Barbara HUFFMAN, Petitioner, v. Edward F. HUFFMAN, Respondent.
• Court: New York City Court

Page 850

403 N.Y.S.2d 850

93 Misc.2d 790

In the Matter of Barbara HUFFMAN, Petitioner, v. Edward F. HUFFMAN, Respondent.

Family Court, Onondaga County.

March 21, 1978.

EDWARD J. McLAUGHLIN, Judge.

In a uniform support proceeding the petitioner and the respondent each appear in different courts, the petitioner in the initiating court, and the respondent in the responding court. The function of the initiating court is not clearly set forth in the Uniform Support of Dependents Law (USDL), New York Domestic Relations Law, Article 3-A (McKinney's 1977). Indeed, whether the function of the initiating court is primarily administrative and ministerial during the initial stages of such a proceeding, or, whether there is a judicial function for the court to perform, is a question which has not been resolved by either the language of the statute nor by case law.

The statute states that if the respondent cannot be found in the initiating state, the judge of the court of the initiating state shall certify that a verified petition has been filed in his court and "that, in his opinion, the respondent should be compelled to answer such petition and should be dealt with according to law." Dom.Rel.Law § 37(3). The court then transmits "such certificate and certified copies of such petition" to the appropriate court in the responding state.

What it is that the court is required to evaluate in order to make its decision is the subject of the analysis of the case now before this court.

The petition seeking support now before the court involves a request for $75.00 per week for the support of three children. The mother of the children, and respondent, the children's father, previously entered into a separation agreement, which contained specific arrangements for the support of their three children. In the 1971 agreement respondent agreed to make a payment of $35.00 per week for the support of the three children. This he has done. Absent a showing of extraordinary circumstances or an unfair, inequitable agreement, is the initiating court able to certify that the petitioner is entitled to more support for the children than the sum agreed upon by the parties in their separation agreement? In light of the recent holding by the New York Court of Appeals in Boden v. Boden, 42 N.Y.2d 210, 397 N.Y.S.2d 701, 366 N.E.2d 791 (1977), this court finds that, absent a showing of extraordinary circumstances or testimony that the agreement was not fair and equitable when it was entered into, petitioner is entitled to the amount agreed to in the separation agreement for child support and that is the only sum that this court may certify to the responding court.

I. FACTORS FOR THE COURT TO CONSIDER IN UNIFORM SUPPORT PROCEEDINGS

In a uniform support proceeding there are four factors for the initiating and responding courts to consider the need of the petitioner, the entitlement of the petitioner, the duty of the respondent, and, the ability of the respondent to meet the needs of the petitioner. A uniform support proceeding is commenced when the petitioner files a verified petition "alleging that he is in need of and entitled to support from the respondent." Dom.Rel.Law § 37(1).

A. NEED OF THE PETITIONER

The initiating court transmits to the responding court a recommendation of need. Dom.Rel.Law § 37(1)(3). Nothing more must be presented to the initiating court than an assertion of the amount of need, properly sworn to. Dom.Rel.Law § 37(1). It is not necessary for the judge in the initiating court to specify in the certificate the amount required for support. Harmon v. Harmon, 160 Cal.App.2d 47, 324 P.2d 901 (1958), cert. den. 358 U.S. 881, 79 S.Ct. 120, 3 L.Ed.2d 110. It is the responding court that actually determines the needs of the petitioner when the respondent appears. If the respondent denies any of the material allegations of the petition, Dom.Rel.Law § 37(6), the transcript of the respondent's testimony is sent to the court of the initiating state for that court to take proof from the petitioner. Then, the respondent may challenge the petitioner's proof in the court of the responding state. Dom.Rel.Law § 37(8), (9). The court of the responding state makes the final order of support. Dom.Rel.Law § 37(11). Were not the responding court able to evaluate the facts presented by each petition, it would merely be acting as an appellate court for the initiating court, a result not indicated by the specific wording of the statute, which says that the responding court is to find and to determine if the petitioner is in need of support. Dom.Rel.Law § 37(11).

B. ENTITLEMENT OF THE PETITIONER

The verified petition that commences a uniform support proceeding alleges that the petitioner is entitled to support from the respondent. Dom.Rel.Law § 37(1). If the initiating court makes a finding of entitlement limited solely to a finding that the petitioner is a person authorized to initiate a proceeding, it would, essentially, be finding precisely the same thing as duty, and it is the responsibility of the responding court to find the duty of support. Dom.Rel.Law § 37(11). If the responding court merely affirmed the assertation made by the initiating court that the wife or child is entitled to support, the responding court would be cast in the role of an appellate court. On the other hand, if the initiating court is to determine entitlement, it must have more to do than to perform the purely ministerial function of seeing that the petition is correctly filled in.

C. THE RIGHT OF THE PETITIONER/THE DUTY OF THE RESPONDENT

The purpose of the Uniform Support of Dependents law is "to secure support in civil proceedings for dependent wives, children and poor relatives from persons legally responsible for their support." Dom.Rel.Law § 30. Thus, entitlement, which is certified by the initiating court, is a statement by the court that the petitioner has a ground for seeking or claiming support and that the petitioner is qualified so to do under the uniform support laws of the state of the initiating court. Duty, on the other hand, is the correlative of the right, or entitlement, to support and falls upon the respondent in uniform support proceedings. Thus, duty is determined by the responding court under the laws of the state of the responding court. Entitlement and duty are not synonymous. Rather, entitlement refers to the rights of the petitioner and duty to the legal liability of the respondent. This balancing of the petitioner's entitlement to support and the respondent's duty to support has primarily been addressed by the courts from the perspective of the respondent. See, e. g. O'Hara v. Floyd, 47 Ala.App. 619, 259 So.2d 673 (1972); Neff v. Johnson, 391 S.W.2d 760 (Ct. of Civ.App. of Texas, 1965); Mahan v. Read, 240 N.C. 641, 83 S.E.2d 706 (1954); Rosenberg v. Rosenberg, 152 Me. 161, 125 A.2d 863 (1965). However, in a recent informal opinion of the New York Attorney General entitlement and duty were merged as one concept. 1976 Op.Atty.Gen. 236. In a letter to the corporation counsel of Port Jervis, the Attorney General stated that "in a child support proceeding commenced in New York and forwarded to California pursuant to New York's Uniform Support of Dependent's Law, which is entitled to reciprocity because of its similarity to the Uniform Reciprocal Enforcement of Support Act adopted by California, California law applies in determining whether an 18-year old New York resident is entitled to support from her father who resides in California." Id. at 237.

A more precise balancing of the rights of the petitioner with the duties of the respondent is found in the decisions of foreign courts that have addressed the distinction. For instance, in Prager v. Smith, 195 A.2d 257 (1963), the District of Columbia Court of Appeals outlined the respective functions of the initiating and responding state courts:

When . . . (the) suit was commenced . . . in New York, that court had the primary duty under the statute to decide if . . . (there was) a prima facie showing of a need for support for the children and that they were entitled to support from the nonresident father. . . . When . . . (the) petition was forwarded here, the responding court had to determine under our local statute whether appellant owed a duty of support and, if so, the amount he should be required to pay for that purpose. Id., at 258, 259.

Thus, it is possible that while a petitioner can be entitled to support under the laws of the state of the initiating court, the respondent may have no duty to provide support under the laws of the state of the responding court.

Confusion in the distinction between entitlement and duty seems to be created by the language found in some opinions which suggests that the initiating court find a duty of support on the part of the respondent. See, e. g. In re Duncan, Ohio App., 17 Ohio Ops.2d 21, 172 N.E.2d 478 (1961); Paul v. Paul, 439 S.W.2d 746 (Sup.Ct.Mo., 1969). More clearly, such a duty of support may be ascertained by determining that there is "an obligor-obligee relationship," Cobbe v. Cobbe, 163 A.2d 333, 336 (D.C.Mun.Ct. of App., 1960), or, by finding that a petitioner is entitled to support.

Thus, for instance, when under the law of the initiating state, a parent is entitled to support from a child, if under the law of the responding state no such duty is found, the laws are not reciprocal, and, the petition for support will not result in a support order being issued by a court of the responding state. Matter of State Welfare Commissioner v. Mintz, 28 A.D.2d 14, 280 N.Y.S.2d 1007 (2d Dept., 1967). See also, Matter of Santa Clara v. Hughes, 43 Misc.2d 559, 251 N.Y.S.2d 579 (Fam.Ct., Ulster Co., 1964); Department of Mental Hygiene, State of California v. Judd, 45 N.J. 46, 211 A.2d 198 (1965).

The court of the responding state, since it is not an appellate court for the court of the initiating state must respect the determination of the initiating...