Martin v. Martin

• Decision Date: 20 April 1987
• Citation: 127 A.D.2d 266,514 N.Y.S.2d 413
• Parties: In the Matter of Ghazal MARTIN, Appellant, v. Derrick D. MARTIN, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 413

514 N.Y.S.2d 413

127 A.D.2d 266

In the Matter of Ghazal MARTIN, Appellant, v. Derrick D. MARTIN, Respondent.

Supreme Court, Appellate Division,

Second Department.

April 20, 1987.

C. Compton Spain, Deputy Co. Atty., Carmel, for appellant.

William J. Florence, Jr., Peekskill (Charles A. Shapiro, of counsel), for respondent.

Before MANGANO, J.P., and BROWN, RUBIN and EIBER, JJ.

BROWN, Justice.

The question to be decided on this appeal is whether the Family Court may, in a proceeding pursuant to the Uniform Support of Dependents Law (Domestic Relations Law art 3-A, hereinafter USDL), issue an order to enforce the child support provisions of a foreign divorce decree which has not been registered in this State. We conclude that, given the absence of a legislative grant of such authority, the Family Court is powerless to make such an order. Accordingly, we remit this matter to the Family Court, Putnam County, to give Mrs. Martin the opportunity to register the foreign judgment pursuant to which she seeks to collect child support which is now past due.

There is no significant dispute as to the facts. On May 3, 1984, Ghazal Martin executed a "complaint for support" in the State of California. The complaint designated the District Attorney of the County of Los Angeles as the attorney for the petitioner and indicated that Mrs. Martin was proceeding pursuant to the provisions of the Uniform Reciprocal Enforcement of Support Act of the State of California (California Code of Civil Procedure § 1650, et seq.).

In her complaint, Mrs. Martin alleged that she and respondent Derrick David Martin had been married in London, England, on August 3, 1968, and had thereafter been divorced in Los Angeles, California, on April 18, 1975. It was further alleged that the parties were the parents of a child, Amir David Martin, who resided with Mrs. Martin in California, and that the respondent had been ordered by the Superior Court of the State of California, County of Los Angeles, which had issued the divorce judgment, to pay $300 per month as support for the child. The relief sought by Mrs. Martin included: (1) an order directing the respondent to pay a "reasonable amount" of child support, and (2) an order directing the respondent to pay $4,950 in arrears alleged to have accrued under the child support provision of the California judgment.

In accordance with California law (California Code of Civil Procedure § 1676), a Judge of the Superior Court of that state issued an order directing the clerk of that court to transmit, together with a copy of that order, three copies of Mrs. Martin's complaint and a copy of California's Uniform Reciprocal Enforcement of Support Act to the Clerk of the Family Court, Putnam County. Receipt of said documents was acknowledged by the Clerk of the Family Court, Putnam County, on June 18, 1984.

Following receipt of the documents from California, the Family Court, in accordance with New York's USDL issued a summons directing the respondent to appear (Domestic Relations Law § 37[4] ). The respondent in fact appeared in the Family Court on July 12, 1984, and the matter was adjourned so that the respondent could retain counsel. On August 2, 1984, the court directed that the Support Collection Unit make an investigation of the finances of the respective parties. The case was again adjourned several times. Interrogatories prepared by the respondent's attorney were sent to Mrs. Martin in California and responses to those interrogatories were thereafter returned to New York.

On April 16, 1985, the Putnam County attorney (representing the petitioner pursuant to Domestic Relations Law § 31[7] ) and the attorney for the respondent appeared in the Family Court. The court, after stating that "[m]y recollection is that this is a petition from California seeking arrears on a California order" and that "[w]e are not a collection agency for another state" dismissed the petition on its own motion. A written order was later signed by the court, in which it was stated that "[t]his court has no jurisdiction to collect arrears on a California order". However, the dismissal was "without prejudice". A motion to reargue, which was denied, as well as this appeal, followed.

On appeal, the petitioner argues that in a proceeding brought pursuant to the USDL, the Family Court has jurisdiction to entertain her application for an order granting her "reasonable" child support. The respondent does not controvert this assertion, and we agree that it is correct. The Family Court, in a proceeding pursuant to the USDL, has subject matter jurisdiction to direct a father, who is within the jurisdiction of the court, to pay a reasonable sum of money for the support of his minor child (see, Domestic Relations Law § 32[3]; § 34[2]; Family Ct. Act § 411). We note that the respondent has not, and does not now, contest the Family Court's jurisdiction over his person and does not argue that there has occurred any defect or irregularity which would deprive the court of personal jurisdiction over him. We also note that, as far as can be determined from the record on appeal, the respondent has never formally denied the allegations of the petition (see, Domestic Relations Law § 37[6] ). Since it is clear that so much of the petition as seeks an order directing the respondent to pay current child support was improperly dismissed, reversal is necessary on that basis alone.

The petitioner argues further, however, that the Family Court erred in holding that it lacked the power to direct the payment by the respondent of arrears which have accumulated with respect to his child support obligations under the 1975 California divorce judgment. It is clear that if the judgment had been registered in New York pursuant to the provisions of the USDL governing the registration of foreign child support orders (Domestic Relations Law § 37-a), the court would have the power to order the payment of "any arrears which may have accrued under such order prior to registration" (Domestic Relations Law § 37-a[7] ). However, despite apparent efforts by the Putnam County attorney to obtain from California the documents needed in order to register the California divorce judgment, that registration has not occurred. Nevertheless, the petitioner argues that, even in the absence of the registration of the divorce judgment, the Family Court has the power in a USDL proceeding to mandate the payment of arrears which have accrued under a foreign child support order. In this regard, we disagree.

It is axiomatic that the Family Court possesses only the power which is explicitly conferred on it by statute (Matter of Borkowski v. Borkowski, 38 A.D.2d 752, 330 N.Y.S.2d 106). The Family Court does have the power to enforce foreign support orders in the context of a proceeding pursuant to Family Court Act article 4. Family Court Act § 461(b) provides:

"(b) If an order of the supreme court or of another court of competent jurisdiction requires support of the child, the family court may

"(i) entertain an application to enforce the order requiring support; or "(ii) entertain an application to modify such order on the ground that changed circumstances requires such modification, unless the order of the supreme court provides that the supreme court retains exclusive jurisdiction to enforce or modify the order".

Also, Family Court Act § 466(c) provides:

"(c) If the supreme court enters an order or decree granting alimony, maintenance or support in an action for divorce, separation or annulment and if the supreme court does not exercise the authority given under subdivision (a) or (b) of this section; or if a court of competent jurisdiction not of the state of New York shall enter an order or decree granting alimony, maintenance or support in any such action, the family court may

"(i) entertain an application to enforce the order or decree granting alimony or maintenance, or

"(ii) entertain an application to modify the order or decree granting alimony or maintenance on the ground that there has been a subsequent change of circumstances and that modification is required".

Thus, it is clear that in a proceeding brought pursuant to article 4 of the Family Court Act, the Family Court has the power to enforce the support provisions of a foreign divorce judgment, irrespective of whether the judgment was issued upon grounds recognized in New York (Matter of Seitz v. Drogheo, 21 N.Y.2d 181, 185, 287 N.Y.S.2d 29, 234 N.E.2d 209). However, this is not a proceeding brought pursuant to article 4 of the Family Court Act. Instead, the petitioner has chosen to proceed pursuant to the USDL, or, rather, its California counterpart. In such a proceeding, the Family Court's power is limited by the terms of Domestic Relations Law § 34 which provides:

"1. The court shall have jurisdiction regardless of the state of last residence or domicile of the petitioner and the respondent and whether or not the respondent has ever been a resident of the initiating state or the dependent person has ever been a resident of the responding state.

"2. The court of the responding state shall have the power to order the respondent to pay sums sufficient to provide necessary food, shelter, clothing, care, medical or hospital expenses, expenses of confinement, expenses of education of a child, funeral expenses and such other reasonable and proper expenses of the petitioner as justice requires, having due regard to the circumstances of the respective parties. Where the petitioner's needs are so urgent as to require it, the court may make a temporary order for support pending a final determination.

"3. The courts of both the initiating state and the responding state shall have the power to order testimony to be taken in either or both of such states by deposition or...