Morse v. Morse
| Decision Date | 28 June 1956 |
| Citation | 153 N.Y.S.2d 957,3 Misc.2d 163 |
| Parties | Elizabeth P. MORSE, Plaintiff-Appellant, v. Forbes MORSE, Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Term |
Leonard I. Schreiber, New York City, Leonard I. Schreiber and Charles H. Levitt, New York City, of counsel, for appellant.
Daniel W. West, New York City, for respondent.
Before HOFSTADTER, HECHT and AURELIO, JJ.
The plaintiff brings this action to recover $2,371.28 claimed to be due under a decree if divorce obtained by her against the defendant in the Superior Court of the State of California, County of Los Angeles. The divorce decree directed the defendant to pay the plaintiff $675 a month for her support and that of the minor child of the marriage. The plaintiff is a resident of California, while the defendant is now a resident of the State of New York.
The defendant, having failed to make the payments directed by the California decree, the plaintiff in August, 1954, instituted a proceeding in the California Superior Court under the Uniform Reciprocal Enforcement of Support Act of California, California Code of Civil Procedure, pt. 3, tit. 10-a, §§ 1650-1690. Thereupon, pursuant to that California statute, the petition and the other appropriate papers were duly transmitted to the Domestic Relations Court of the City of New York for a reciprocal statutory further proceeding there under the New York Uniform Support of Dependents Law, L.1949, ch. 807, as amended, McK.Unconsol.Laws, § 2111 et seq. After a hearing in the Family Court Division of the latter court an order was made on September 14, 1954 directing the defendant to pay $400 a month for the support of the plaintiff and the child. In the court below the defendant admitted that at the time the order was made by the Domesic Relations Court he was in default under the California divorce decree and, on this admission, partial summary judgment was granted to the plaintiff for the balance due under the California decree at that time.
The defendant has since September 14, 1954 made the $400 monthly payments directed by the order of the Domestic Relations Court. The plaintiff's complaint to recover the difference between these $400 payments and the $675 monthly directed to be paid by the California decree has been dismissed on the ground that the order of the Domestic Relations Court is a bar to this claim. The Municipal Court held that New York had the same power to modify the California decree that California had, and that the Domestic Relations Court order was an effective exercise of this power, citing People of State of New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 and Langerman v. Langerman, 303 N.Y. 465, 104 N.E.2d 857. This appeal presents the question of the correctness of the ruling so made.
It is not disputed that the California court has at no time modified the support provision in its decree. Since under California law an alimony decree may not be modified retroactively to deprive a wife of alimony which has already accrued, Keck v. Keck, 219 Cal. 316, 321, 26 P.2d 300, its divorce decree is entitled to full faith and credit and will support an action in another state for the recovery of alimony due thereunder, Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905; Rosenberg v. Rosenberg, Sup., 118 N.Y.S.2d 813.
We do not reach the broad question whether a New York court may, in any case, modify the California decree, for we are persuaded that the Domestic Relations Court not alone did not have the power so to do in this case but did not even purport to do so. The order of the Domestic Relations Court was, as stated, made pursuant to U.S.D.L.
U.S.D.L. was enacted in New York as chapter 807 of the Laws of 1949. Its declared purpose is 'to secure support * * * for dependent wives, children and poor relatives from persons legally responsible for their support.' While New York was among the first of the states to adopt the legislation substantially similar reciprocal statutes are now in effect in all the states and territories of the United States (see McKinney's Unconsol.Laws, § 2111 and footnotes). The constitutionality of the New York act has very recently been upheld in a full opinion by the Court of Appeals, Landes v. Landes, 1 N.Y.2d 358, 153 N.Y.S.2d 14; Id., 1 N.Y.2d 827, 153 N.Y.S.2d 208, affirming Landes v. Landes, 207 Misc. 460, 138 N.Y.S.2d 442, affirmed 1 A.D.2d 772, 149 N.Y.S.2d 216. The court affirmed a support order made by the Family Division of the Domestic...
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