Nilsa B. B. v. Clyde Blackwell H.

• Decision Date: 31 December 1981
• Citation: 84 A.D.2d 295,445 N.Y.S.2d 579
• Parties: In the Matter of NILSA B. B. (Anonymous), Appellant, v. CLYDE BLACKWELL H. (Anonymous), Respondent.
• Court: New York Supreme Court — Appellate Division

Page 579

445 N.Y.S.2d 579

84 A.D.2d 295

In the Matter of NILSA B. B. (Anonymous), Appellant, v. CLYDE BLACKWELL H. (Anonymous), Respondent.

Supreme Court, Appellate Division,

Second Department.

Dec. 31, 1981.

Glickman & McAlevey, New City (Anne L. Glickman, New City, of counsel; Philip E. Greenwald, New York City, on the brief), for appellant.

Laventhall & Zicklin, New York City (Robert Zicklin, New York City, of counsel), for respondent.

Before LAZER, J. P., and RABIN, COHALAN and MARGETT, JJ.

MARGETT, Justice.

We hold that neither CPLR 301 nor 302 (subd. provides a basis for the exercise of personal jurisdiction by the courts of New York over a respondent in a paternity proceeding who is neither physically present nor domiciled in the state at the time of service of process and who has not consented to the exercise of such jurisdiction.

The petitioner in this paternity proceeding is a resident of New York. She alleges in her petition that respondent is a resident of Missouri. She further alleges that she had a "relationship with sexual intercourse" with respondent from April, 1977 to July, 1979, during which time respondent visited New York approximately twice a month. ¹ Petitioner alleges that as a result of an act of sexual intercourse with respondent which occurred in New York, she gave birth to a child on October 14, 1979. Petitioner was a resident of New York throughout her relationship with respondent. Her child was born in New York and, we presume, has continuously resided here with her.

More than 15 months after her alleged relationship with respondent had ended, petitioner commenced this proceeding by causing a summons and petition to be personally delivered to respondent in Missouri on or about November 21, 1980. Respondent replied by moving to dismiss the proceeding for lack of jurisdiction over his person. Rejecting petitioner's contentions that CPLR 301 or CPLR 302 (subd. ), or both of them, conferred such jurisdiction upon the courts of New York in this proceeding, the Family Court granted respondent's motion and dismissed the petition.

Although we think it probable that due process would not be offended if New York were to assert jurisdiction over the person of the respondent in this proceeding (cf. Kulko v. Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132), we are constrained to agree with the Family Court that no such assertion of jurisdiction may be derived from the statutes invoked by petitioner. ²

Accordingly, we affirm its order.

As we read it, CPLR 302 (subd. provides no basis for jurisdiction either in this case or in paternity cases in general. That section reads as follows:

"A court in any matrimonial action or family court proceeding involving a demand for support, alimony, maintenance, distributive awards or special relief in matrimonial actions may exercise personal jurisdiction over the respondent or defendant notwithstanding the fact that he or she no longer is a resident or domiciliary of this state, or over his or her executor or administrator, if the party seeking support is a resident of or domiciled in this state at the time such demand is made, provided that this state was the matrimonial domicile of the parties before their separation, or the defendant abandoned the plaintiff in this state, or the obligation to pay support, alimony, maintenance, distributive awards or special relief in matrimonial actions accrued under the laws of this state or under an agreement executed in this state."

As petitioner implicitly concedes, since the parties have never been married to each other, CPLR 302 (subd. ) can support jurisdiction in this case only if the proviso that "the obligation to pay support * * * accrued under the laws of this state" applies. ³ Petitioner contends that this proviso applies because since "each and every relevant circumstance in respect to paternity and support is connected with and occurred in New York State", respondent's obligation to pay support undoubtedly accrued under the laws of the State of New York if it accrued under the laws of any state. On the other hand, respondent effectively contends that the proviso does not apply because, regardless of whether New York law would govern petitioner's claim for relief, no obligation to pay support had accrued as of the time this proceeding was commenced. More specifically, respondent contends that the Legislature intended the proviso at issue to apply only where the subject proceeding seeks enforcement of a pre-existing obligation which has become embodied in an order or judgment of a court. Respondent further contends that since it is only through the subject paternity proceeding that respondent's obligation to pay support may ultimately accrue upon entry of orders of filiation and support, no obligation to pay support on his part could have existed at the time this proceeding was commenced. We agree with respondent's construction of the proviso (accord Matter of Anonymous v. Anonymous, 104 Misc.2d 611, 614-615, 428 N.Y.S.2d 608; cf. Lieb v. Lieb, 53 A.D.2d 67, 70, 385 N.Y.S.2d 569).

Although the language of the proviso is not completely free from ambiguity, at least when it is examined standing alone, that language is more supportive of the interpretation urged by respondent. It bears emphasis that the proviso speaks of an "obligation" having accrued and not a "cause of action". A cause of action is generally said to have accrued when the right to sue on the cause of action has become vested (Matter of City of White Plains v. City of New York, 63 A.D.2d 396, 403, 407 N.Y.S.2d 517). For example, in a paternity case, the cause of action accrues upon pregnancy (although the limitations period does not begin to run until the birth of the child) (Family Ct. Act, § 517). Thus, if the proviso spoke of a "cause of action" instead of an "obligation", we might well reach a different result. However, it seems apparent that an "obligation" cannot be said to have "accrued" "under the laws" of a state before or at the same time that the "cause of action" seeking to impose that obligation has accrued. An "obligation" so accrues only after the cause of action has been found to have merit. In this paternity case, "after * * * is determined * * * would respondent's obligation have 'accrued' " (see Matter of Anonymous v. Anonymous, 104 Misc.2d 611, 615, 428 N.Y.S.2d 608, supra).

Our conclusion that an "obligation to pay support" has not "accrued" in a paternity case, within the meaning of CPLR 302 (subd. ), at least until the parental tie has been determined to exist, is also supported when the relevant language of the proviso at issue is considered in the context of CPLR 302 (subd. ) as a whole. As explained by Weinstein-Korn-Miller (N.Y.Civ.Prac., vol. 1, par 302.19, p. 3-137), the other provisos of that section would be rendered mere surplusage if we were to accept the kind of construction offered by petitioner:

"Surely cannot apply whenever a wife who is a resident or domiciliary of New York seeks support, alimony or maintenance, because in that event the other provisions of subdivision (b) are superfluous. Perhaps what was intended was a pre-existing obligation to pay on the part of the defendant before he left the state, as, for example, an outstanding Family Court order."

Moreover, we note that, as a general matter, a father's obligation to pay child support does not necessarily follow upon the mother's becoming pregnant or upon the birth of the child. The child may not be carried to term or the father may be indigent. Therefore, even if we were to accept petitioner's unstated premise that "the obligation * * * accrued" upon her becoming pregnant or upon the birth of her child, it would not necessarily follow that "the obligation to pay support * * * accrued" within the meaning of CPLR 302 (subd. ) upon the happening of either of those events.

Finally, the legislative history of CPLR 302 (subd. ) also supports our construction of that section. The legislative memorandum of Assemblyman Albert H. Blumenthal, a sponsor of the bill which was enacted as CPLR 302 (subd. ), states as follows, in pertinent part: "This bill gives New York Courts personal jurisdiction over non-resident defendants in support or alimony cases where the party seeking support lives in this State and the parties were married and living in this State before separation or the defendant abandoned the plaintiff in this State or an original order for support or alimony was awarded in this State" (N.Y.Legis.Ann., 1974, p. 41, emphasis added). The memorandum contains no reference to paternity proceedings.

In sum, since "the obligation to pay support" had not "accrued under the laws of this state" at the time this proceeding was commenced, the courts of New York had no jurisdiction over respondent's person under CPLR 302 (subd. ⁴ Petitioner also seeks to derive jurisdiction over respondent's person from CPLR 301. That section, which became effective along with CPLR 302 on September 1, 1963, provides that "court may exercise such jurisdiction over persons, property, or status as might have been exercised heretofore." Petitioner contends that respondent's contacts with New York are sufficient to support jurisdiction over respondent's person under CPLR 301, even if those contacts are unrelated to the cause of action asserted by petitioner. Alternatively, petitioner contends that if CPLR 301 requires that her cause of action arise out of respondent's contacts with New York, then she has also met that test.

Respondent admits that from April, 1977 to July, 1979 he was an officer and employee of, inter alia, the H______ Book Company, Inc., a Missouri corporation, which is not authorized to do business in New York. He further admits that, in his employment capacity, he visited New York approximately every month from 1977 to 1979 in order to determine whether various New York publishers had any books which the ...