Pearson v. Pearson

• Decision Date: 20 May 1985
• Parties: Joan PEARSON, Appellant, v. Arthur PEARSON, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 332

489 N.Y.S.2d 332

108 A.D.2d 402

Joan PEARSON, Appellant, v. Arthur PEARSON, Respondent.

Supreme Court, Appellate Division,

Second Department.

May 20, 1985.

McCormack and Phillips, New City (Ronald A. Phillips, New City, of counsel; Ralph S. Joseph on the brief), for appellant.

Granik, Silverman, Sandberg, Campbell & Nowicki, New City (Paul V. Nowicki, New City, of counsel), for respondent.

Before TITONE, J.P., and O'CONNOR, RUBIN and LAWRENCE, JJ.

RUBIN, Justice.

The parties obtained a New Hampshire divorce decree effective September 6, 1977. Incorporated, but not merged, into that decree was a written stipulation agreement which provided, inter alia, for the payment of alimony to the wife. The alimony provision was specifically made pursuant to New Hampshire Revised Statutes Annotated § 458:19, the New Hampshire alimony statute, which provides, to the extent relevant to these appeals, that any alimony provision "shall be effective for not more than three years from the date thereof, but such order may be renewed, modified or extended if justice requires for periods of not more than three years at a time".

When Mr. Pearson ceased making the alimony payments, Mrs. Pearson, a resident of New York, petitioned the Family Court, Rockland County, for an order enforcing the alimony provisions of the New Hampshire divorce decree, pursuant to Family Court Act § 466(c). Her petition was granted and, by orders dated July 9, 1979 and April 7, 1980, respectively, Mr. Pearson was directed, inter alia, "to make payment in accordance with the divorce decree".

By order to show cause, dated April 2, 1982, Mr. Pearson moved, inter alia, to vacate or modify the enforcement order dated April 7, 1980, on the grounds,inter alia, that the alimony provision, which was specifically made in accordance with New Hampshire Revised Statutes Annotated § 458:19 was only effective for three years from the date of the divorce decree. Since the alimony provision had never been renewed, modified or extended, Mr. Pearson argued that the alimony provision had terminated on September 6, 1980. Cognizant that the Family Court had limited jurisdiction and that the foreign divorce decree was entitled to full faith and credit, the Family Court concluded that there was no longer a currently effective alimony provision which could be enforced by it. Therefore, the Family Court, in an order dated April 19, 1983, granted that branch of the motion which sought to vacate the previous order of enforcement dated April 7, 1980. In the vacatur order, the Family Court directed the support collection unit to compute and collect any sums still owed to Mrs. Pearson during the period in which the alimony provision was in effect. By order dated December 20, 1983, the Family Court directed a hearing on a subsequent motion brought by Mr. Pearson for resettlement of the April 19, 1983 order on the ground that he had made payments not credited to him. Mrs. Pearson appeals from both these orders.

It is well settled that a foreign divorce decree in which both parties were subject to the personal jurisdiction of the court is entitled to full faith and credit by the courts of New York (see Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279; Greene v. Greene, 90 A.D.2d 533, 455 N.Y.S.2d 35). Family Court Act § 466(c) empowers the Family Court to entertain applications to enforce and modify alimony and support provisions of foreign divorce decrees, irrespective of the grounds upon which the decrees were granted (Matter of Silver v. Silver, 36 N.Y.2d 324, 367 N.Y.S.2d 777, 327 N.E.2d 816; Beaverson v. Beaverson, 72 A.D.2d 963, 422 N.Y.S.2d 259; Wertheimer v. Wertheimer, 50 A.D.2d 879, 376 N.Y.S.2d 638). Since the Family Court is a court of limited jurisdiction, it cannot exercise powers beyond those granted to it by statute (Matter of Borkowski v. Borkowski, 38 A.D.2d 752, 330 N.Y.S.2d 106; Loeb v. Loeb, 14 A.D.2d 270, 220 N.Y.S.2d 579). Pursuant to Family Court Act § 466(c), the Family Court's power to enforce or modify is limited to cases where there is a currently effective support or alimony provision (Matter of Silver v. Silver, supra; Beaverson v. Beaverson, supra; Wertheimer v. Wertheimer, supra). If a foreign divorce decree does not contain any alimony or support provisions, the Family Court has no power to make alimony or support provisions (see Matter of Blizniak v. Blizniak, 73 A.D.2d 1050, 425 N.Y.S.2d 421). Similarly, if the foreign decree at one time provided for alimony or support payments, but the alimony or support provision has terminated pursuant to its express terms, the Family Court no longer has authority to enforce or modify the subject provision (see Matter of Silver v. Silver, supra).

In this case, the New Hampshire divorce decree entitled Mrs. Pearson to alimony for a period of three years from the date of the decree, unless there was a renewal, modification or extension of the alimony provision. When Mrs. Pearson petitioned the Family Court within three years from the effective date of the decree, the Family Court had the power to enforce or modify the alimony provisions. However, in her petition, Mrs. Pearson sought only an enforcement of the provisions of the New Hampshire decree. Mrs. Pearson never applied to the Family Court to modify the alimony provision by extending the duration of time in which she would be entitled to receive the alimony payments. Therefore, the order of enforcement merely enforced the alimony provision of the foreign divorce decree as expressly written. In other words, the order of April 7, 1980 enforced Mrs. Pearson's right to receive alimony for a period of three years after the divorce decree. At the expiration of three years, the alimony provision terminated. No application to renew, modify or extend the alimony provision was ever made. Therefore, when Mr. Pearson sought to vacate the order of enforcement by order to show cause dated April 2, 1982, the three-year alimony provision of the foreign decree had already expired on September 6, 1980. Consequently, on the date of the motion to vacate, there was no longer a currently effective alimony provision which the Family Court, a court of limited jurisdiction, had the power to enforce or modify.

Accordingly, the order dated April 19, 1983 should be affirmed. The appeal from the order dated December 20, 1983 is dismissed. That order, which directs a judicial hearing to aid in the disposition of the motion to resettle the order dated April 19, 1983, does not affect a substantial right (see CPLR 5701), and therefore is not appealable as of right (see Matter of Manufacturers Hanover Trust Co. v. Porcelli, 111 A.D.2d 175, 488 N.Y.S.2d 471 De Santis v. De Santis, 107 A.D.2d 734, 484 N.Y.S.2d 95; Bagdy v. Progresso Foods Corp., 86 A.D.2d 589, 446 N.Y.S.2d 137).

Order of the Family Court, Rockland County, dated April 19, 1983, affirmed, without costs or disbursements.

Appeal from an order of the same court, dated December 20, 1983, dismissed, without costs or disbursements.

O'CONNOR and LAWRENCE, JJ., concur.

TITONE, J.P., dissents and votes to reverse the order dated April 19, 1983, deny that branch of respondent husband's motion as sought vacatur of an order dated April 7, 1980, and vacate the order dated December 20, 1983, with an opinion.

TITONE, Justice Presiding (dissenting).

This is a proceeding brought pursuant to Family Court Act § 466 to enforce the support provisions incorporated, but not merged, in a New Hampshire divorce decree. The petitioner wife, Joan Pearson, appeals from two orders of the Family Court, Rockland County, which, in essence, granted her former husband's application to vacate previously entered orders of support. The core question is whether the Full Faith and Credit Clause (U.S. Const., art. IV, § 1) bars New York from directing that a New York spouse continue to receive such support by virtue of a New Hampshire statutory provision which limits alimony payments under the present circumstances to three years from the effective date of the decree unless an application is made for renewal. Because the New Hampshire decree is modifiable under New Hampshire law and because the New Hampshire decree was made an order of the Family Court within the three-year period, I conclude that there is no such bar and cast my vote for reversal.

The parties were divorced by decree of the Superior Court of New Hampshire, Grafton County, effective September 6, 1977. A handwritten stipulation, providing for Mrs. Pearson's support at the rate of $1,300 per month for the first year and $1,100 per month thereafter "pursuant to RSA 458:19", was incorporated, but not merged, in the decree. Insofar as pertinent to the Pearson marriage, New Hampshire Revised Statutes Annotated § 458:19 provides that a decree for alimony "shall be effective for not more than three years from the date thereof, but such order may be renewed, modified or extended if justice requires for periods of not more than three years at a time".

When Mr. Pearson ceased making payments, Mrs. Pearson, then and now a resident of Spring Valley, New York, applied to the Family Court, Rockland County, for an enforcement order pursuant to Family Court Act § 466. The Family Court issued two orders, dated July 9, 1979 and April 7, 1980, respectively, the latter following an appearance by Mr. Pearson through counsel, which, inter alia, directed Mr. Pearson to make certain payments and granted Mrs. Pearson's "application to enter an order enforcing the support provisions of the divorce decree".

Following some collateral proceedings brought in New Hampshire by Mr. Pearson--including an attempt to obtain a Federal court injunction against the Family Court--Mr. Pearson brought a motion by order to show cause in the Family Court, Rockland County, seeking to modify or vacate the enforcement orders upon the ground that his obligation to make payments terminated on September 6,...