Proceeding for Support under Uniform Support of Dependents Law, Matter of

• Decision Date: 16 May 1978
• Citation: 94 Misc.2d 588,405 N.Y.S.2d 225
• Parties: In the Matter of a PROCEEDING FOR SUPPORT UNDER the UNIFORM SUPPORT OF DEPENDENTS LAW. Joseph V. GEMMITI, Commissioner of Social Services for the Saratoga County Department of Social Services, and Charlene R. LaDue, Petitioners, v. James Fisk BEAGLE, Respondent.
• Court: New York Family Court

Page 225

405 N.Y.S.2d 225

94 Misc.2d 588

In the Matter of a PROCEEDING FOR SUPPORT UNDER the UNIFORM SUPPORT OF

DEPENDENTS LAW. Joseph V. GEMMITI, Commissioner of Social

Services for the Saratoga County Department of

Social Services, and Charlene R. LaDue, Petitioners, v. James Fisk BEAGLE, Respondent.

Family Court, Saratoga County.

May 16, 1978.

Francis E. Dorsey, Saratoga Springs, for petitioner, Joseph V. gemmiti

John M. Hogan, Jr., Saratoga Springs (John H. Ciulla, Jr., Saratoga Springs, of counsel), for petitioner, Charlene R. LaDue.

J. Raymond Fisher, Albany, for respondent.

DECISION

ROBERT F. DORAN, Acting Family Court Judge.

By petition dated May 27, 1976, the petitioners commenced a proceeding under the Uniform Support of Dependents Law of the State of New York to compel the respondent to pay support to the dependents named in the petition. The petition alleged that respondent was believed to be residing in Riverside, California.

The testimony of the Commissioner of Social Services showed that the total arrearages owed as of March, 1976, were $22,163.40. Those arrearages were owed in part to petitioner LaDue and in part to the Department of Social Services. The testimony also stated that the current rate of support was $60.00 per week. The testimony of petitioner LaDue was the same. The petition, testimony and judge's certificate were forwarded to California. The judge's certificate sought not only enforcement of the $60.00 per week support payment but also payment toward the arrearages.

A number of support orders were issued by the Superior Court of the State of California in and for the County of Riverside. The critical order was dated April 25, 1977 and was duly filed in the County Clerk's Office of the County of Riverside, California on April 29, 1977 in Judgment Book 246 at page 193. That order set the arrearage due the Department of Social Services, State of New York as of March 31, 1977 in the amount of $7,140.00 and set the amount owing petitioner LaDue at $17,988.40, as of March 31, 1977. The order directed the respondent to pay current support of $80.00 per month for each of the three children and to pay an additional sum of $60.00 per month to be applied first to the liquidation of the arrearage owed the Department of Social Services and then to the amount owed to petitioner LaDue. Payments due April 1, 1977 were suspended because the respondent was then unemployed, but were to commence thirty days after the respondent became gainfully employed.

By order to show cause dated December 13, 1977, the respondent now seeks to have the provision of the order of the Superior Court of California as to arrearages vacated and set aside as not being authorized pursuant to the provisions of the Uniform Support of Dependents Law of the State of New York (Domestic Relations Law, Article 3-A). The respondent argues that Domestic Relations Law § 34(2) should control, and under that section, the California court had no power to grant an order mandating reimbursement for past expenditures. The respondent argues that the judge's certificate of the Saratoga County Family Court was erroneous in that the judge had no authority to request that payment toward arrearages be ordered by the California court.

The petitioners contend that the arrearage issue was completely litigated in the California court and this Court must give full faith and credit to the California judgment. The petitioners also contend that, in any event, the law of California applied to this matter when it was litigated in the Superior Court of California, and under that law, arrearages may properly be ordered to be paid.

There is no question in the Court's mind that there is a difference between the pertinent provisions of the law of each of the states involved. New York's Uniform Support of Dependents Law does not specifically provide for the granting of arrearages (Domestic Relations Law § 34(2)). California's law, which is entitled Uniform Reciprocal Enforcement of Support Act, specifically does allow for arrearages (California Code of Civil Procedure § 1683 of Title 10a, Part 3).

The orders received from the California court indicate that its orders for support were entered pursuant to the California Uniform Reciprocal Enforcement of Support Act. The critical order dated April 25, 1977 was not subject to modification and was reduced to judgment by a proper filing in the County Clerk's Office of Riverside County in Judgment Book 246 at page 193. The Court also notes that there is no question that the respondent was properly served in California and appeared in person and by counsel.

Under the full faith and credit clause of the U. S. Constitution (Const. Art. IV, § 1) all state and federal courts, territorial courts and courts of the District of Columbia must recognize the validly rendered judgments of one another. In this case, there is no question but that the judgment of the California court was validly rendered, since it had in personam jurisdiction of the respondent through proper service and his appearance. The mere fact that New York's Uniform Support of Dependents Law provisions do not specifically recognize a cause of action for arrearages is no reason to fail to give full faith and credit to the California judgment in this case. New York has adopted a very broad policy of recognizing foreign adjudication. For example, New York has expressly abolished the cause of action for alienation of affection. But if such a cause of action is recognized in another jurisdiction and the foreign court, with proper jurisdiction, renders judgment on it, New York will recognize the judgment (Parker v. Hoefer, 2 N.Y.2d 612, 162 N.Y.S.2d 13, 142 N.E.2d 194).

Even if we assume that the California court erred in interpreting its own law or in failing to apply the proper state's law, this still would not be a ground for refusing recognition of the judgment (Fauntleroy v. Lum, 210 U.S. 230, 28 S.Ct. 641, 52 L.Ed. 1039). The respondent's remedy should have been to follow the appellate path in California.

Assuming, arguendo, that this Court could somehow sit as an appellate court over the California judgment in this matter, it would be faced with determining under the applicable choice-of-law rules whether to apply California or New York law.

Initially, it should be noted that the Uniform Reciprocal Enforcement of Support Act itself creates no duties of family support but leaves this matter to the legislatures of the several states (see Commissioner's Prefatory Note to the Uniform Reciprocal Enforcement of Support Act, 1968 Revised Act, 9 Uniform Laws Annotated, p. 806). Similarly, the court in Matter of Slochowsky v. Lavine et al., 73 Misc.2d 563, 568-9, 342 N.Y.S.2d 525, 531, recognized that New York's Uniform Support of Dependents Law does not create an independent obligation apart from governing substantive support statutes.

Section 7 of the Uniform Reciprocal Enforcement of Support Act provides: "Duties of support applicable under this Act are those imposed under the laws of any state where the obligor was present for the period during which support is sought. The obligor is presumed to have been present in the responding state during the period for which support is sought until otherwise shown."

In...