Mac Fadden v. Martini

• Decision Date: 30 March 1983
• Citation: 463 N.Y.S.2d 674,119 Misc.2d 94
• Parties: In the Matter of a Proceeding for Support under the Uniform Support of Dependents Law, Petra A. MAC FADDEN, Petitioner, v. Peter R. MARTINI, Respondent. * Family Court, Ulster County
• Court: New York Family Court

Page 674

463 N.Y.S.2d 674

119 Misc.2d 94

In the Matter of a Proceeding for Support under the Uniform Support of Dependents Law, Petra A. MAC FADDEN, Petitioner, v. Peter R. MARTINI, Respondent. ^* Family Court, Ulster County.

March 30, 1983.

Denham & Vaneria (Robert E. Denham, of counsel), for petitioner.

Gary E. Brenner, for respondent.

HUGH R. ELWYN, Judge:

The petitioner seeks both to enforce and to modify a Colorado divorce judgment which had incorporated by reference a separation agreement, and which, as modified, obligated the respondent to pay $100 per month for the support of his daughter until she reached the age of eighteen years.

Although the court might have entertained a petition to modify the Colorado judgment under the authority of Family Court Act § 461, subd. (b)(ii) upon the ground that changed circumstances required such modification, the petitioner has chosen instead to resort to the simple expedient of registering a foreign child support order in this court pursuant to section 37-a of the Domestic Relations Law (Added L., 1980, C. 227, § 1, eff. June 10, 1980).

Since by virtue of the provisions of subd. 6(a) of D.R.L. 37-a, "(U)pon registration the registered foreign child support order shall be treated in the same manner as a support order issued by a court of this state", the petitioner urges that this court by virtue of the provisions of Section 451 of the Family Court Act ¹ may now modify the Colorado judgment by requiring the respondent to conform to New York Law regarding his child support obligations.

Upon registration of the Colorado divorce judgment with this court the Clerk of the Court promptly complied with the provisions of D.R.L. § 37-a, subd. 5(b) by sending by certified mail to the respondent at the California address given, a notice of the registration with a copy of the registered child support order and the post office address of the petitioner. The Clerk also docketed the case and notified the Support Collection Unit of his action.

The respondent did not avail himself of the relief provided by subd. 6(b) of D.R.L. § 37-a by moving to vacate the registration or for other relief. Consequently, the support order of Colorado Court is confirmed (D.R.L. § 37-a, subd. 6(b)). Instead, the respondent has through his California counsel filed a document denominated a "Response" in which he acknowledges the Colorado decree, admits that he resides in Tahoe City, State of California and that he is the father of the child, Robin Martini. His "Response" also raises numerous defenses arising out of the separation agreement and the Colorado judgment to the petitioner's application for an increase in child support from $100 to $300 per month and the extension of the respondent's child support obligation until the child becomes 21.

As for the enforcement of the Colorado support order, which by virtue of D.R.L. § 37-a, subd. 6(a) has become "a support order issued by a court of this state", the court has already made orders that the respondent pay to the petitioner the sum of $3,500.00 with interest, representing child support of $100 per month, as provided in the registered support order, and which had accrued under the Colorado judgment ² and has further ordered the respondent to continue to pay the monthly sum of $100 until the child attains the age of 18 as provided in the Colorado court's order. All of this was done in recognition of the validity of the Colorado court's judgment. The court also, pursuant to the discretion accorded it by D.R.L. § 238, has accorded the petitioner's counsel attorney's fees in the amount of $1,402.50 for legal services rendered to the petitioner in the enforcement of the separation agreement and the Colorado court's order (Fabrikant v. Fabrikant, 19 N.Y.2d 154, 159, 278 N.Y.S.2d 607, 225 N.E.2d 202; Resslhuber v. Resslhuber, 57 A.D.2d 552, 393 N.Y.S.2d 70; Holliday v. Holliday, 58 A.D.2d 619, 395 N.Y.S.2d 695; Galyn v. Schwartz, 77 A.D.2d 437, 434 N.Y.S.2d 1; Heaney v. Heaney, 93 Misc.2d 811, 816-817, 403 N.Y.S.2d 687).

The petitioner has now moved, upon notice to the respondent, for an order of this court (1) requiring respondent to pay child support for his daughter from the date of her eighteenth birthday on December 27, 1982 until she attains twenty-one years of age, (2) setting the amount of child support to be paid by respondent during this three year period, (3) directing respondent to pay certain outstanding hospital and physician's charges, (4) awarding petitioner counsel fees in connection with the prosecution of this proceeding, and (5) for such other and further relief as may be just and proper, together with costs and disbursements. The respondent has filed an affidavit in response to the motion for modification of the child support order and the petitioner's counsel has filed a reply affirmation.

The court agrees with the petitioner's contention that under New York law the respondent's obligation to support his daughter extends until the child reaches twenty one years of age (D.R.L. § 32, subd. 3; F.C.A. § 413); that the respondent is legally liable for the support of any dependent child, notwithstanding the fact that the respondent has obtained in another state or county a final decree of divorce (D.R.L. § 33(4)); that "a separation agreement, a decree of separation and a final decree or judgment terminating a marriage relationship does not eliminate or diminish either parent's duty to support a child of the marriage under section four hundred thirteen and four hundred fourteen of this article" (F.C.A. § 461, subd. (a)); that the duty of support of the children continues on the part of both parents until the child's twenty-first birthday and cannot be eliminated by contract; that an attempt by the respondent to evade his statutory obligation to provide support for his daughter until she reaches the age of twenty-one years by means of a contract with the mother is not permissible (Matter of Parker v. Stage, 43 N.Y.2d 128, 133, 400 N.Y.S.2d 794, 371 N.E.2d 513; Toppel v. Toppel, 67 A.D.2d 628, 412 N.Y.S.2d 17; Lyle v. Lyle, 72 A.D.2d 597, 421 N.Y.S.2d 98; Schiffman v. Schiffman, 79 A.D.2d 971, 434 N.Y.S.2d 458; Blauner v. Blauner, 60 A.D.2d 215, 400 N.Y.S.2d 335; Stern v. Stern, 59 A.D.2d 857, 399 N.Y.S.2d 125; Matter of Carter v. Carter, 58 A.D.2d 438, 397 N.Y.S.2d 88; Belaustegui v. Belaustegui, 85 Misc.2d 1015, 1019, 380 N.Y.S.2d 950; Matter of Belt v. Belt, 67 Misc.2d 679, 324 N.Y.S.2d 623; Matter of Kern v. Kern, 65 Misc.2d 765, 319 N.Y.S.2d 178; Matter of Zoro v. Lino, 71 Misc.2d 725, 336 N.Y.S.2d 866; Fanelli v. Barclay, 100 Misc.2d 471, 419 N.Y.S.2d 813); and that while the terms of a separation agreement may bind husband and wife, the child is not bound thereby and that the child has a right to be supported by its father regardless of the existence of the separation agreement's provision for support (Boden v. Boden, 42 N.Y.2d 210, 212 397 N.Y.S.2d 701, 366 N.E.2d 791). These well established principles of family law have been previously recognized by this court in its decision in Shinouda v. Shinouda, 96 Misc.2d 290, 409 N.Y.S.2d 184 (Family Ct. Ulster Co. 1978) citing Moat v. Moat, 27 A.D.2d 895, 277 N.Y.S.2d 921; Matter of Brock v. Brock, 4 A.D.2d 747, 164 N.Y.S.2d 539; Matter of Schwartz v. Schwartz, 48 Misc.2d 859, 265 N.Y.S.2d 820.

There is however, considerable doubt as to whether public policy considerations would require the application of New York law to the Respondent's support obligation where that obligation has already been fixed by a court of another state. ³

If this were a conventional support proceeding brought under either Article 4 of the Family Court Act or under the Uniform Support of Dependents Law (D.R.L. Art. 3-A) and the respondent had been brought under the jurisdiction of this court through the issuance and service of a summons upon him within the jurisdiction of the court (F.C.A. §§ 411, 426, 427; D.R.L. § 37) there is no doubt that the foregoing legal principles urged by the petitioner, and with which this court concurs, would have to be applied in determining the respondent's obligation for the support of his daughter.

The problem is not so much what the law of New York is, as it is whether the court through the petitioner's resort to the registration of a foreign support order pursuant to D.R.L. § 37-a has acquired the personal jurisdiction over the respondent so as to support her application.

The petitioner alleges no change of circumstances which would require a modification of the Colorado judgment (see F.C.A. § 461, subd. b, par. (ii)); the argument advanced in support of the motion is simply that the court in this proceeding for the registration of a foreign support order (D.R.L. § 37-a), which upon registration "shall be treated in the same manner as a support order issued by a court of this state" should now apply New York law to the respondent's support obligation and make its own order fixing the amount of that obligation by increasing it from $100 to $300 per month, extending that obligation until the child attains 21 years of age, and directing the respondent to pay certain outstanding hospital and physician's charges.

The petitioner's counsel contends that because the respondent has filed a "Response" to the Clerk's notification of the registration with this court of the Colorado support order that the respondent has made a general appearance in the proceeding and that the court has thereby acquired personal jurisdiction over the respondent (CPLR Rule 320(b)) which would render any order issued by this court fully enforceable in a California court as a personal judgment against the respondent, a resident of California, which order would also be entitled to full faith and credit by the United States Constitution.

The construction which the petitioner's counsel seeks to put upon the respondent's "Response" to this proceeding for the enforcement of the Colorado support...