Mary F. B. v. David B.

• Decision Date: 03 February 1982
• Citation: 447 N.Y.S.2d 375,112 Misc.2d 475
• Parties: . B., Petitioner, v. DAVID B., Respondent. Family Court, New York County
• Court: New York Family Court

Page 375

447 N.Y.S.2d 375

112 Misc.2d 475

In the Matter of a Proceeding for Support under Article 4 of

the Family Court Act

MARY F. B., Petitioner, v. DAVID B., Respondent.

Family Court, New York County.

Feb. 3, 1982.

Robert L. Tuttle, New York City, for petitioner.

Rita Warner, New York City, for respondent.

DECISION and ORDER

ELRICH EASTMAN, Judge:

Petitioner, Mary F. B., an American resident of Paris, France invokes the jurisdiction of this court by means of a Petition for Support verified September 9, 1981 and filed herein on September 10, 1981. Respondent, presently residing and employed in the State of New York, moves to dismiss her petition on the ground that there is currently a prior action pending in Paris, France in the nature of a divorce proceeding commenced by him, prior to the commencement of this proceeding. In the French matrimonial proceeding, a temporary order of support was entered in favor of petitioner granting her alimony, pendente lite and child support.

Respondent contends that this court lacks jurisdiction herein by reason of F.C.A. Section 464 unless the matter of support was specifically referred to it or the petitioner is likely to become a public charge.

The Family Court's jurisdiction to entertain these proceedings as noted by this Court in Matter of Ratner v. Ratner, 73 Misc.2d 374, 375-376, 342 N.Y.S.2d 58 is premised upon "the general principle that a New York domiciliary 'is amenable to suit in our courts at the instance of non-residents to enforce personal liability.' " See also Adams v. Adams, 272 A.D. 29, 68 N.Y.S.2d 294. And, while the family court is a court of limited jurisdiction, a father's support obligation, as defined by the Family Court Act "depends on the law of the father's place of domicile." Ratner, supra at 377, 342 N.Y.S.2d 58. F.C.A. § 421 sets forth the appropriate place of venue. It provides in part:

"Proceedings to compel support under this article may be originated in the county in which (a) the respondent is residing or is domiciled at the time of the filing of the petition for support; ..."

Under F.C.A. Section 422, this petitioner is a qualified person to originate such proceedings since under the statutory scheme a wife "may originate a proceeding under this article to compel a person chargeable with the support to support the petitioner as required by law."

Thus, clearly this petitioner may invoke this court's jurisdiction to fix support.

However, also at issue is the effect of the French divorce proceedings currently adjourned to March 4, 1982 upon this proceeding in view of the statutory proscription set forth in F.C.A., Section 464 and C.P.L.R. Section 3211(a)(4).

This court in reviewing F.C.A., Section 464 stated in Matter of La Monde A., 111 Misc.2d 781, 444 N.Y.S.2d 371.

"It is apparent from a careful reading of the statute, that it was intended to apply where an action has been brought in Supreme Court prior to the institution of a support action in Family Court."

Indeed, all relevant case law pertaining to the applicability of F.C.A., Section 464 relates to the pendency of an action in the Supreme Court of the State of New York. See Fischman v. Fischman, 51 A.D.2d 725, 379 N.Y.S.2d 143; McKay v. McKay, 82 Misc.2d 929, 371 N.Y.S.2d 339; Montes v. Montes, 54 A.D.2d 627, 387 N.Y.S.2d 602. It is therefore apparent that this statutory provision does not affect this court's authority to exercise jurisdiction in a case where a French court is exercising simultaneous jurisdiction in a divorce proceeding between the parties.

C.P.L.R. § 3211(a)(4) "... is designed to avoid duplicative litigation and implements its design by permitting the court to dismiss the action whenever it is shown that another action between the same parties on the same cause is pending elsewhere. The elsewhere need not be a New York Court; it can be a federal court anywhere in the country, or a court in another state." Siegel, New York Practice at 321, section 262. As Professor Siegel indicates, CPLR § 3211(a)(4) is intended to apply in the case of actions pending within the United States. See Abkco Industries Inc. v. Lennon, 85 Misc.2d 465, 471, 377 N.Y.S.2d 362.

Another available basis for this court's refusal of jurisdiction is the equitable doctrine of Forum Non Conveniens or inconvenient forum. CPLR § 327. This doctrine, largely a product of case law, is applied in cases where a New York Court technically may exercise jurisdiction but because of insubstantial New York contacts it is decided jurisdiction is best exercised by another forum. In the case of Silver v. Great American Ins. Co., 29 N.Y.2d 356, 328 N.Y.S.2d 398, 278 N.E.2d 619, the New York Court of Appeals held that the doctrine "should turn on considerations of justice, fairness and convenience and not solely on the residence of one of the parties." See Varkonyi v. S. A. Empressa de Viacao A. R. G., 22 N.Y.2d 333, 337-338, 292 N.Y.S.2d 670, 239 N.E.2d 542. In the present case respondent is a resident of New York and hence, any inconvenience which could result by this court's entertainment of jurisdiction would be to the petitioner who is a resident of France. Petitioner's willingness to come to respondent's place of residence indicates that no harm would result from proceeding with the instant action in Family Court. See Abkco Industries Inc. v. Lennon, 85 Misc.2d 465, 471, 377 N.Y.S.2d 362.

The final basis for this court to decline jurisdiction is pursuant to the Doctrine of Comity. CPLR Article 53 takes cognizance of New York's willingness to recognize foreign country judgments particularly money judgments. Nevertheless, CPLR § 5302 makes clear that it is to be applied in the case of "any foreign country judgment which is final, conclusive and enforceable where rendered..." The judgment by the French Court represents a temporary support order only and...