Ratner v. Ratner

• Decision Date: 23 March 1973
• Citation: 73 Misc.2d 374,342 N.Y.S.2d 58
• Parties: In the Matter of Orny RATNER, Petitioner, v. Aron RATNER, Respondent.
• Court: New York City Court

Page 58

342 N.Y.S.2d 58

73 Misc.2d 374

In the Matter of Orny RATNER, Petitioner, v. Aron RATNER, Respondent.

Family Court, City of New York, New York County.

March 23, 1973.

[73 Misc.2d 375] Norman C. Harlowe, New York City, for petitioner.

Aron Ratner, pro se.

DECISION

NANETTE DEMBITZ, Judge:

In this proceeding for child-support, the respondent-father resides in New York County, and the petitioner-mother has established permanent residence in Israel with the minor child of their marriage. The questions here presented are whether the Family Court has jurisdiction over this support petition by and on behalf of residents of a foreign country, and whether, if the court has jurisdiction, it can enter a support order without the personal appearance of petitioner. This court answers both questions in the affirmative.

JURISDICTION

Opinions have differed among the judges of the Family Court and its predecessor court as to whether the general grant of jurisdiction over petitions for child-support (Fam. Ct. Act, secs. 411, 413) was intended to include a petition against a New York father by an out-of-country mother for an out-of-country child. ¹ Insofar as jurisdiction was inferred from the provision authorizing support proceedings in the county of respondent's residence, ² this ground for assertion of jursidiction was negated by the recent Court of Appeals ruling that such provision is merely a prescription of venue. Caplan v. Caplan, 30 N.Y.2d 941, 943, 335 N.Y.S.2d 693, 694, 287 N.E.2d 385, 386. However, in this court's opinion other appellate rulings establish that the Family Court has jurisdiction in the case at bar.

Adams v. Adams, 272 App.Div. 29, 68 N.Y.S.2d 294 (1st Dept.), though unmentioned in recent opinions, appears to continue to be a controlling precedent. There the court upheld the power of the Domestic Relations Court of the City of New York (a predecessor of the Family Court) to order support for children living in New Jersey. It relied on the general principle that a New York domiciliary 'is amenable to suit in our courts at the instance of non-residents to For other appellate indications that Family Court support jurisdiction is restricted neither in terms of the place of residence of the petitioner or child nor in terms of reciprocity, see Doyle v. Doyle, 261 App.Div. 1068, 27 N.Y.S.2d 466 (1st Dept.) and DiMartino v. DiMartino, 269 App.Div. 781, 55 N.Y.S.2d 583 (2nd Dept.) (facts underlying both Per curiam rulings discussed in Almandares v. Almandares, 186 Misc. 667, 670--671, 60 N.Y.S.2d 164, 167, Dom.Rels.Ct., N.Y.C.); Landes v. Landes, 1 N.Y.2d 358, 365, 366, 153 N.Y.S.2d 14, 19, 20, 135 N.E.2d 562, 566, where the court indicated that the Family Court has jurisdiction over a support petition by a non-resident for a non-resident child even apart from the Uniform Support of Dependents Law under which the case arose.

                enforce personal[73 Misc.2d 376]  liability'.  (272 App.Div. at p. 30, 68 N.Y.S. at p. 296).  3  The Adams decision preceded the enactment of the Uniform Support of Dependents Law 4 which provides for reciprocal enforcement of support obligations between domestic states; reciprocity--viewed as a factor in some of the lower court decisions (see note 1)--was ignored.  The Adams holding thus appears applicable to support petitions by and for out-of-country residents as well as out-of-state residents
                

This court respectfully disagrees with the view in Morlock (cited supra note 1) that specification in the Family Court Act of Family Court jurisdiction over reciprocal proceedings under the Uniform Support of Dependents Law was intended to foreclose other proceedings by and on behalf of non-residents. ⁵ It is true that New York may have a lesser interest in providing a forum for the instant litigation than in the case of a resident child (compare Bachman v. Mejias, 1 N.Y.2d 575, 581, 154 N.Y.S.2d 903, 907, 136 N.E.2d 866, 869) or a resident of a State with reciprocal support arrangements with New York. Nevertheless, as suggested by Adams (supra), there are particular and persuasive reasons to apply to child support proceedings the general principle that personal 'liability follows the person and may be enforced wherever the person may be found'. ⁶ For, despite the universality of a father's obligation to support a young Since the Family Court is a court of limited jurisdiction, it can only enforce the support obligations specified in the Family Court Act. However, its exercise of jurisdiction over child-support petitions by and for non-residents against New York-domiciled fathers occasions no conflict of laws problem. The obligation of a father to his child depends on the laws of the father's place of domicile (Whitton v. Schultz, 265 App.Div. 583, 584--585, 40 N.Y.S.2d 273, 274, 3rd Dept.), and in any event is similar from place to place.

                child--imposed both at common law 7 and, of instant relevance, by Israeli law 8--the obligation cannot be enforced in this as in many other cases unless New York supplies a forum.  For New York nevertheless to read a limitation of subject-matter jurisdiction into the Family Court Act, seems an unjust breach of international comity; comity connotes broad receptivity to suits by foreign residents or on foreign laws rather than specific reciprocity.  See Russian Reinsurance Co. v. Stoddard, 240 N.Y. 149, 168, 147 N.E. 703, 709; Clark Plastering Co. v. Seaboard Surety Co., 259 N.Y. 424, 429, 182 N.E. 71, 72; Rosenstiel v. Rosenstiel, 16 N.Y.2d 64, 74, 262 N.Y.S.2d 86, 91, 209 N.E.2d 709, 712.  9  Moreover, New York's interests would be disserved by a restriction of support jurisdiction that would tend to coerce the movement of out-of-country children to New York to secure support even when such a move would be contrary to the welfare of the child and therefore of this State
                

PROCEDURE

It is conceded that petitioner has regular employment in Israel, that she thereby contributes to the support of herself and her child, that deprivation and hardship would be inflicted on them both if she were required to appear in person in this proceeding, and that she is the only person capable of testifying in support of the petition. On these grounds, petitioner's attorney moves for leave to support the petition by submitting a deposition to be taken from petitioner in Israel.

The CPLR provision on the use of depositions, which appears controlling herein because an appropriate 'working tool' (Schwartz v. Schwartz, 23 A.D.2d 204, 208, 259 N.Y.S.2d 751, 1st Dept; Family Court Act, sec. 165), provides that at a trial:

'The deposition of any person may be used by any party for any purpose against any other party who was present or represented at the taking of the deposition or who had the notice required under these rules, provided that the court finds: * * *

(ii) that the witness is at a greater distance than one hundred miles from the place of trial or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; or * * *

(v) upon motion or notice, that such exceptional circumstances exist as to make its use desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court.' (R. 3117(a)3)

The introductory phrase 'deposition of any person' in the above provision has been interpreted as including a party as well as a non-party witness and thus as authorizing, subject to the conditions thereafter specified, the use of a non-appearing party's deposition at trial. See Wojtas v. Fifth Avenue Coach Corp., 23 A.D.2d 685, 257 N.Y.S.2d 404 (2nd Dept.); 3 Weinstein-Korn-Miller, New York Civil Practice, p. 31--228, note 7 (comment after first-cited case) and p. 31--229. ¹⁰ It seems unlikely that the CPLR was intended to eliminate completely the prior rule that under exigent circumstances the deposition of a non-appearing party may be admitted in evidence. See Hill v. Hudson View Gardens, Inc., 13 A.D.2d 730, 214 N.Y.S.2d 477(1) (1st Dept.). And while the language of subparagraph (ii) may suggest an intention to cover only non-party witnesses therein, subparagraph (v), referring to the general principle as to oral testimony, appears to use the term 'witnesses' in the generic sense of Anyone giving evidence whether or not a party. ¹¹

Applying CPLR 3117(a)3(v), as thus construed, to the case at bar, the facts here meet the test of 'exceptional circumstances' needed to justify use of petitioner's deposition at trial. Respondent concededly has failed to make regular support payments for his son; and even if the court were to consider petitioner's trip to New York to prosecute this action as an item of child-support for which respondent would be liable, ¹² petitioner might fail to collect such reimbursement either because of respondent's lack of means or because of difficulty in enforcement. Thus, her trip might well result in an increased unpaid amount of child support.

As to the other element specified in R. 3117(a)3(v)--the importance of oral testimony--, the significance of petitioner's appearance and of her in-courtroom cross-examination, is reduced by reason of the limited nature of the evidence she must supply in support of her petition. Compare 3 Weinstein-Korn-Miller, New York Civil Practice, p. 31--164 at note 2; Woods v. National Life and Accident Insurance Company, 380 F.2d 843, 846 n. 8 (C.A. 3, 1967). Respondent's paternity and therefore his obligation to support, is conceded. Compare Meyers v. Meyers, 29 Misc.2d 163, 165, 219 N.Y.S.2d 63, 65 (Sup.Ct. Nassau). Petitioner must therefore only establish, at the outset, the facts as to the relatively uncomplicated isse of the child's needs.

That petitioner's use of a deposition to support her petition is a feasible and fair procedure, is demonstrated by the provision for like procedure in the Uniform Support of Dependents Law and the decisions upholding support orders...