Langdon v. Mohr

• Citation: 99 A.D.2d 957,472 N.Y.S.2d 650
• Parties: Victoria Mohr LANGDON, Petitioner-Respondent, v. Robert E. MOHR, Respondent-Appellant.
• Decision Date: 06 March 1984
• Court: New York Supreme Court — Appellate Division

Page 650

472 N.Y.S.2d 650

99 A.D.2d 957

Victoria Mohr LANGDON, Petitioner-Respondent, v. Robert E. MOHR, Respondent-Appellant.

Supreme Court, Appellate Division,

First Department.

March 6, 1984.

M. Felder, New York City, for petitioner-respondent.

C.G. Mills, New York City, for respondent-appellant.

Before MURPHY, P.J., and KUPFERMAN, BLOOM, KASSAL and ALEXANDER, JJ.

MEMORANDUM DECISION.

Order and judgment (one paper) Supreme Court, New York County, entered January 18, 1983, which confirmed the report of the Special Referee and awarded judgment in favor of petitioner Victoria Mohr Langdon in the sum of $33,836.67, together with interest thereon, representing support for the parties' daughter in the sum of $1,500, support for the parties' son in the sum of $23,275, reimbursement of medical expenses in the sum of $9,016.67, and awarded petitioner $5,000 for counsel fees, is unanimously reversed, on the law, without costs, the judgment vacated and the petition dismissed.

In a proceeding purportedly brought pursuant to Family Court Act § 461(b), petitioner seeks to enforce and modify the child support provisions believed to have been incorporated in a judgment of divorce obtained by petitioner, in the Republic of Mexico on April 21, 1967.

Respondent-appellant sought dismissal of the petition on the ground, inter alia, that the court lacked subject matter jurisdiction. Nevertheless, apparently believing that "the Mexican divorce judgment incorporated the terms of the parties' separation agreement, which did not merge therein", Special Term referred the issues of child support and reimbursement of medical expenses to a Referee to hear and report. In his initial report, the Referee found that the Mexican judgment did not provide for the incorporation by reference of the separation agreement and did not contain any provision for the payment of child support. The Referee was of the opinion that appellant was not estopped from raising this defense. However, because the support provisions were omitted from the judgment he did not address the merits of petitioner's claims but suggested alternative basis upon which the proceeding could go forward. The court rejected the Referee's conclusion that appellant was not estopped to raise the lack of subject matter jurisdiction defense and held that it clearly was the intention of the parties that the separation provisions should be incorporated in the decree. The court observed that no issue in respect to that omission had been raised in the prior litigation between the parties and that "[i]t would be an injustice if at this juncture petitioner's claims were not decided on the merits." Accordingly, the matter was sent back to the Referee with a direction that findings and recommendations be made concerning the merits of petitioner-respondent's claims. The Referee's second report made those findings and was confirmed. The order entered thereon is the subject of this appeal.

In the absence of a provision in the Mexican divorce, decree requiring child support, the court lacked jurisdiction to entertain the instant petition. "The court's jurisdiction in matrimonial actions is wholly statutory and is limited to that which is expressly conferred by statute....." (Eckert v. Eckert, 34 A.D.2d 684, 312 N.Y.S.2d 183; Kingston v. Kingston, 283 A.D. 355, 357, 128 N.Y.S.2d 78; Langerman v. Langerman, 303 N.Y. 465, 470, 104 N.E.2d 857. Section 461(b) of the Family Court Act provides that "If an order of the Supreme Court or of another court of competent jurisdiction requires support of the child, the Family Court may entertain an application to enforce or modify the order requiring support..." Section 466(c) similarly provides that "... if a Court of competent jurisdiction not of the State of...