Paden v. Warnke
| Decision Date | 15 April 1981 |
| Parties | Kathryn G. PADEN, Plaintiff, v. Edward J. WARNKE, Defendant. |
| Court | New York Supreme Court |
Hollenberg, Levin, Marlow & Solomon, Mineola, for plaintiff.
Ronald S. Platt, New York City, for defendant.
The parties were married on March 26, 1966 and were divorced in the State of Florida by judgment dated July 30, 1980. The divorce decree directed the defendant to pay alimony of $160.00 per week.
On November 24, 1980 the Florida judgment was filed and entered in the Office of the Clerk of the County of Nassau pursuant to CPLR Article 54.
Before the Court is a motion by the plaintiff to direct that (1) the defendant give reasonable security for the payment of the sums of money to become due her for her maintenance; (2) the plaintiff have a money judgment against the defendant in the sum of $13,743.07 representing arrears fixed in the judgment of $2,080.00 for temporary alimony, $7,823.07 for attorneys fees and costs as fixed in the divorce judgment and $3,840 for current alimony arrears, and (3) the defendant pay to the plaintiff the reasonable expenses of bringing this motion.
In addition to the plaintiff's motion the Court has before it the defendant's cross motion which seeks an order (1) vacating the plaintiff's judgment filed on November 24, 1980 upon the ground that the same was obtained by default in appearance of the defendant; (2) dismissing the plaintiff's application as it pertains to counsel fees upon the ground that the fees were awarded not to the plaintiff but to her attorneys and, (3) modifying the alimony awarded to the plaintiff in Florida upon the grounds that the same was obtained by a default without considering the respective financial ability of the parties and that there has been a substantial and significant change in the defendant's finances since the date of that action.
The Florida divorce action was started by personal service upon the defendant on August 16, 1979 (See, Paragraph C of the divorce judgment; affidavit of plaintiff, p. 1, affidavit of the defendant, p. 2). On September 7, 1979 the defendant Edward J. Warnke filed an answer to the plaintiff's petition for divorce as well as a Counterpetition for Dissolution of Marriage. The matter came on before Judge Johnson in the Circuit Court of the Seventeenth Judicial Circuit in Broward County, Florida on July 1, 1980 at which time the defendant Edward J. Warnke failed to appear either in person or with counsel which fact is noted in the final judgment of dissolution of marriage entered July 30, 1980.
The defendant, Edward J. Warnke, does not dispute the foregoing facts. Rather, it is his claim that while he did have an attorney initially representing him in Florida he ran out of funds to pay his lawyer, who, as a result, "failed to appear when the case was reached for trial."
Thus, the first issue which must be determined by the Court is whether the Florida divorce judgment was properly filed pursuant to CPLR Article 54.
CPLR Article 54 permits the filing of sister state judgments, decrees or orders entitled to full faith and credit in this State provided they were not obtained by default in appearance, or by confession of judgment (CPLR 5401, 5402). Assuming that the judgment was not obtained by a default in appearance a foreign judgment of divorce directing installment payments of alimony is entitled to full faith and credit and upon filing pursuant to Article 54 of the CPLR is enforceable in the Courts of New York (Ehrenzweig v. Ehrenzweig, 61 A.D.2d 1003, 402 N.Y.S.2d 638, Adrien v. Adrien, 65 A.D.2d 931, 410 N.Y.S.2d 441).
As noted above, the defendant Edward J. Warnke not only answered his former wife's petition in the Florida action but he also interposed a Counterpetition for Dissolution of Marriage. As a result, it is clear that the Florida divorce judgment was not obtained by Mr. Warnke's default in appearance and that the filing of that judgment on November 24, 1980 pursuant to CPLR Article 54 was proper.
In L & W Air Con. v. Varsity Inn of Rochester, Inc., 82 Misc.2d 937, 371 N.Y.S.2d 997, Mr. Justice James H. Boomer of the Supreme Court, Monroe County, concluded that the service of an answer by a defendant which later defaulted in appearing when the case came on for trial constituted an appearance in the action in the foreign court which was sufficient to allow a CPLR Article 54 filing of the judgment in New York. In a well-reasoned opinion which was later affirmed by the Appellate Division, Fourth Department, (56 A.D.2d 735, 392 N.Y.S.2d 853) Justice Boomer held (82 Misc.2d at p. 938, 371 N.Y.S.2d 997):
"(1) The judgment roll from the Georgia court shows that after the service of the summons and complaint in New York, the defendant submitted an answer in which it denied the allegations of the complaint and, as an affirmative defense, alleged that the court did not have jurisdiction of the person of defendant. When the case came on for trial the defendant did not appear and judgment was taken by default.
The 1968 Uniform Enforcement of Foreign Judgments Act, from which article 54 was taken, does not exclude from filing a judgment of a sister State taken by default. The committee to advise and consult with the Judicial Conference on the CPLR, in urging the adoption in New York State of the 1968 Uniform Enforcement of Foreign Judgments Act, recommended that the act not apply to judgments 'in which there was no appearance by the defendant in the rendering forum.' (Fifteenth Annual Report of NY Judicial Conference, 1970, Appendix D, Report to Legislature in Relation to CPLR, p. A107). This recommendation was based upon the committee's fear of 'sewer service' (p. A107). As submitted by the committee, proposed article 54 excludes from its scope judgments obtained by 'default in appearance.' CPLR 320 states that the defendant 'appears by serving an answer or a notice of appearance.' It is apparent from the committee's report that it intended to exclude not all judgments taken by default, but only those default judgments where there is no appearance at all in the action. Since the defendant did appear in the action in Georgia, the Georgia judgment may not be refused recognition under article 54 because of the default of the defendant in appearing at the time of the trial.
(2) Defendant may not now question the...
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