L. v. W.

• Decision Date: 14 November 1975
• Citation: 375 N.Y.S.2d 969,84 Misc.2d 353
• Parties: In the Matter of L., Petitioner, v. W., Respondent.
• Court: New York Family Court

Page 969

375 N.Y.S.2d 969

84 Misc.2d 353

In the Matter of L., Petitioner, v. W., Respondent.

Family Court, City of New York, Kings County.

Nov. 14, 1975.

W. Bernard Richland, Corp. Counsel, New York City, by Jerilyn J. Angeli, Brooklyn, Asst. Corp. Counsel, in support of petition.

DECISION AND ORDER

M. HOLT MEYER, Judge.

This case points up some of the difficulties inherent in the Uniform Support of Dependents Law (Domestic Relations Law, art. 3--A, hereinafter referred to as the U.S.D.L.) when there has been an Ex parte divorce and when the parties are engaged in disputes which arose subsequent to the divorce in courts of different states.

This proceeding was brought by petitioner on behalf of three minor children of the former marriage between petitioner and respondent.

According to petitioner the parties were married in Mississippi in 1958 and were divorced in Ohio in 1972 in a proceeding in which respondent was the plaintiff. There were four children of the marriage, three of whom reside with petitioner, Lynn aged 14, James aged 11, and Lorrie aged 9, and one of whom, Joseph aged 15, resides with respondent. Petitioner has remarried and seeks support for the three children only.

The Ohio divorce decree incorporates a prior separation agreement entered into between the parties dated February 29, 1972. It provides Inter alia that respondent shall pay to petitioner $150.00 per month for the support of all four children and that petitioner shall have custody of said children. Further, the agreement provides that respondent shall have the right to 'visit with said minor children at any and all reasonable times and hours until same may be modified by a court having jurisdiction in the matter.'

Petitioner herein was served by mail in New York where she was residing with a certified copy of the summons and complaint in the Ohio divorce proceeding. Petitioner's unrebutted testimony is that she did not appear in the Ohio divorce proceeding either in person or by attorney.

Subsequently a dispute arose between the parties as to visitation, respondent alleging that petitioner had denied him visitation altogether. He thereupon brought on two motions in the Common Pleas Court of Montgomery County, Ohio returnable June 3 and June 30, 1975 for an order transferring custody of the children from petitioner to him and suspending child support until petitioner herein complied with respondent's visitation rights, and to find petitioner in contempt for such non-compliance.

Petitioner did not appear either in person or by attorney on either of the aforesaid motion dates. On June 4, 1975 the Ohio court continued custody with petitioner mother but ordered that she grant respondent visitation rights for a period of 6 weeks during the summer beginning June 14, 1975 through July 26, 1975, respondent to be responsible for providing transportation from the home of petitioner (now in Brooklyn, N.Y.) to Dayton, Ohio, and return to Brooklyn. Petitioner refused to permit respondent to remove the children from this state but, she alleges, she has not denied respondent visitation with the children in New York. On July 31, 1975 the Ohio court ordered that the obligation of child support be discontinued as of June 30, 1975 by reason of petitioner having violated the order of the Ohio court by depriving respondent of his visitation rights. The Ohio court further found petitioner in contempt and 'continues imposition of any sentence resulting therefrom.'

Subsequently respondent moved from Ohio to California. Petitioner filed her petition herein on July 10, 1975 which was denied by the Superior Court, Yuba County, California on September 23, 1975 on the basis of the Ohio order discontinuing respondent's obligation to support his three children who reside with petitioner.

The court does not agree with the California court's decision purporting to discontinue respondent's support obligation. It is well established in New York that an Ex parte sister state divorce decree is entitled to full faith and credit only as it affects the marital status of the parties (Burford v. Burford, 24 A.D.2d 491, 261 N.Y.S.2d 489; Anello v. Anello, 22 A.D.2d 694, 253 N.Y.S.2d 759).

A sister state divorce decree which purports to effect a change in a party's property or economic rights is not entitled to full faith and credit,...