Reis v. Zimmer

• Decision Date: 30 December 1999
• Citation: 263 A.D.2d 136,700 N.Y.S.2d 609
• Parties: 1999 N.Y. Slip Op. 11,484 Matter of Judson REIS, Petitioner-Respondent, v. Wendy E. ZIMMER, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 609

700 N.Y.S.2d 609

1999 N.Y. Slip Op. 11,484

Matter of Judson REIS, Petitioner-Respondent, v. Wendy E. ZIMMER, Respondent-Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Dec. 30, 1999.

Paul D. Pearson, Buffalo, for respondent-appellant.

Paul Ivan Birzon, Buffalo, for petitioner-respondent.

PRESENT: PINE, J.P., LAWTON, HAYES, WISNER and SCUDDER, JJ.

LAWTON, J.:

Respondent appeals from the third and fourth ordering paragraphs of an order of Supreme Court that (a) reduced her vacation time with the parties' two minor children, and (b) modified the existing child support order, pursuant to which petitioner paid child support to respondent, by directing that the child support paid be deposited into an account to defray visitation expenses. She contends that: (1) the court lacked subject matter jurisdiction to modify the child support order; (2) there is no basis in the record for the court to modify the child support order; and (3) the visitation schedule set by the court is not in the children's best interests and therefore must be revised. For the reasons that follow, the order should be reversed and the petition and counterclaim dismissed on the ground that the court lacked subject matter jurisdiction over this proceeding.

I

The facts are largely undisputed. Respondent and petitioner were married in Buffalo, New York, on June 21, 1987 and are the parents of two minor children, one born August 13, 1988, and the other born January 1, 1990. The parties lived together in both New York City and Long Island while completing their respective post-secondary educations. The parties last lived together in Hamilton, Massachusetts, and they separated on December 21, 1993. From December 1993 until June 1995, respondent and the parties' two children lived in the marital home in Massachusetts, while petitioner resided in a nearby townhouse. In 1995 respondent relocated to Buffalo, New York, with the parties' two children in accordance with a stipulation entered into by the parties in a Massachusetts proceeding. At the present time, respondent has relocated to Oregon with the parties' two children, her current husband and two children from her second marriage. Petitioner now lives in Ipswich, Massachusetts, with his current wife and stepdaughter.

Respondent's physical custody of the children was initially pursuant to the parties' May 21, 1993 separation agreement. That agreement provided for joint custody, with primary physical residence with respondent and liberal visitation with petitioner. It further provided that petitioner would pay child support to respondent in accordance with the Massachusetts Child Support Guidelines, and that "[t]his Agreement shall be construed and governed according to the laws of the Commonwealth of Massachusetts." A judgment of divorce incorporating the separation agreement was entered in Massachusetts on April 13, 1994. In December 1994 respondent commenced a proceeding in Massachusetts in which she sought the court's authorization to relocate the children to Buffalo, New York. In June 1995 the parties entered into an agreement permitting the requested relocation and providing for liberal visitation with petitioner, including six weeks in the summer, two school vacation weeks throughout the year, shared holiday vacations and one weekend a month. Child support was set at $395 a month, not including the travel expenses for petitioner and the children between New York and Massachusetts. The agreement further provided that "Massachusetts will retain jurisdiction over the children and the parties, to the extent otherwise consistent with law and for so long as [petitioner] remains resident in the Commonwealth."

On March 17, 1998, petitioner commenced an action in Massachusetts seeking a temporary restraining order and a permanent injunction prohibiting respondent from relocating the children to Portland, Oregon. Petitioner also sought an order requiring respondent to relocate the children back to Massachusetts. On March 26, 1998, petitioner commenced this proceeding in Supreme Court, Erie County, requesting that New York assume jurisdiction and seeking an order restraining respondent from relocating the parties' children to Oregon and awarding him primary physical custody.

On April 14, 1998, respondent moved to dismiss this proceeding based on lack of subject matter jurisdiction pursuant to CPLR 3211(a)(2) and 28 USC § 1738A (d). In support thereof, respondent asserted that, pursuant to Domestic Relations Law § 75-g (1), the New York court was precluded by the pending Massachusetts action from exercising jurisdiction. Respondent relied on the Parental Kidnapping Prevention Act (PKPA) (28 USC § 1738A) and the Uniform Child Custody Jurisdiction Act (UCCJA) (codified in New York in Domestic Relations Law §§ 75-a--75-z) to support dismissal on the ground that Massachusetts had not declined jurisdiction. Additionally, she asserted that the parties' judgment of divorce reserves jurisdiction to Massachusetts.

In response, petitioner asserted that New York had jurisdiction over this matter because New York is the "home state" of the children under Domestic Relations Law § 75-d (1)(a) and, therefore, "absent any superseding authority such as the (PKPA), New York has jurisdiction to pass upon the relief requested." He also asserted that he was not requesting a modification of an existing custodial order but rather was seeking to maintain the status quo.

On June 23, 1998, respondent answered and counterclaimed for "modification" of the present custody arrangement to permit her relocation of the children to Oregon. She reiterated the fact that she has been the primary custodial parent since the parties' separation and offered to revise the visitation schedule to give petitioner "block" time during school vacations and to pay the incremental costs for the children to visit and stay in communication with petitioner. In reply, petitioner denied that moving the children to Oregon would be in their best interests.

The court thereafter held a fact-finding hearing, during which petitioner stated that he had withdrawn his complaint in the Massachusetts action. When the court asked respondent's counsel what the "decision" in Massachusetts was, he responded, "Massachusetts declined jurisdiction".

At the conclusion of the fact-finding hearing and after an in camera interview with the children and the Law Guardian, the court denied petitioner's request for custody of the children and granted respondent's counterclaim to relocate the children to Portland, Oregon. The court concluded that it was in the best interests of the children to remain with respondent. Additionally, the court ordered that petitioner have visitation with the children for all but the first and last weeks of their summer vacation, all Christmas and spring breaks, Thanksgiving break from Wednesday morning to Sunday evening, three other three-or four-day weekends upon 30 days' written notice, as well as any other reasonable time upon two weeks' written notice. Finally, the court directed petitioner to deposit his child support payments into an account to be used by him to pay for his and/or the children's transportation costs, a 1-800 toll-free telephone number for the children to reach petitioner and/or their grandparents, and any other "reasonable expense related to enhancing or facilitating the relationship between petitioner and the children". In its order, the court specified that it was not modifying the Massachusetts child support order.

II

Respondent argues that, in ordering petitioner to deposit his child support payments into an account to pay for transportation costs incurred in exercising his right to visitation and to set up 1-800 telephone numbers for the children to reach him and/or their grandparents on the East Coast, the court thereby modified the Massachusetts order. Respondent argues that the New York court lacked subject matter jurisdiction to modify that order. Petitioner responds that the court did not modify the Massachusetts order because it did not adjust the total amount of petitioner's child support obligation.

We agree with respondent. We recognize that the order was intended to foster the father-child relationships and that respondent is not in need of any child support in light of her combined household annual income of $260,000. Despite the court's statement to the contrary, however, we conclude that the court in fact modified petitioner's existing child support obligations under the liberal definition of "modification" set forth in the Uniform Interstate Family Support Act (UIFSA) (Family Ct. Act art. 5-B) and the Full Faith and Credit for Child Support Orders Act (FFCCSOA) (28 USC § 1738B).

III

28 USC § 1738B (b) defines "modification" as "a change in a child support order that affects the amount, scope, or duration of the order and modifies, replaces, supersedes, or otherwise is made subsequent to the child support order." The UIFSA, as set forth in New York in article 5-B of the Family Court Act, is Federally mandated to replace the Uniform Support of Dependents Law (USDL) found in now repealed Domestic Relations Law article 3-A (see, Sobie, Introductory Commentary, McKinney's Cons. Laws of New York, Book 29A, Family Ct. Act art. 5-B, at 203). Both the UIFSA and the FFCCSOA apply to this case and must be read in conjunction. Indeed, "[t]he two acts provide a virtually iron-clad structure for child support * * * enforcement" (Sobie, id., at 204-205).

The goal of the UIFSA is to eliminate the problems arising from multiple support orders from various states by providing for one tribunal to have continuing and exclusive jurisdiction to establish or modify a child support order (see, Peddar v. Peddar, 43 Mass.App.Ct. 192, 196, 683 N.E.2d 1045; Child Support Enforcement Div. of Alaska v. Brenckle, 424 Mass. 214, 218, 675 N.E.2d 390, 392 [once a court enters a support...