Shapiro ex rel. Ehrenpreis v. Ehrenpreis

• Decision Date: 30 March 1981
• Citation: 108 Misc.2d 495,437 N.Y.S.2d 618
• Parties: In the Matter of Ruth SHAPIRO ex rel. Ann EHRENPREIS and Naomi Ehrenpreis, Petitioners, v. Leon EHRENPREIS, Respondent.
• Court: New York Family Court

Page 618

437 N.Y.S.2d 618

108 Misc.2d 495

In the Matter of Ruth SHAPIRO ex rel. Ann EHRENPREIS and

Naomi Ehrenpreis, Petitioners, v. Leon EHRENPREIS, Respondent.

Family Court, New York County.

March 30, 1981.

Aaron Weitz, New York City, for petitioner.

Louis C. Pulvermacher, P. C., New York City, for respondent.

OPINION

NANETTE DEMBITZ, Judge:

This child support proceeding concerns a separation agreement that eliminates the father's weekly obligation for child support when the mother's income exceeds a specified amount. Such support-reduction provision was held invalid in 1977 by a then-judge of this Court, who therefore issued a child support order without regard to it. Because of the transition in law and policy from the "primacy of male obligation" ¹ to the current legal equality between father and mother, the father's motion for reconsideration of the 1977 order must be granted, and the support-reduction clause must now be held valid.

In their separation agreement executed in 1968, the parties provided for the father's payment of $77 weekly for support of two children who were to reside with the mother; however, under a specified formula the father would have no support obligation for these two children in any year that the mother's taxable income exceeded $17,012. The agreement also provided for the father's support, without qualification, of the parties' third child, who was handicapped and residing in a foster-home. The parties were divorced the day before the agreement was executed by a foreign decree which omitted any reference to support or to the agreement.

In 1977 after several years in which the father failed to pay child support to the mother, in alleged reliance on her increased earnings and the support-reduction clause of the agreement, the mother petitioned this Court for support on behalf of the two children living with her. Holding the clause invalid, the Court issued an order for $120 a week. ² Thereafter a wage deduction order for this weekly amount plus an amount on arrears was entered against the father, a university professor; such payments from his wages to the mother have continued to date.

I

Movant-father citing Kleila v. Kleila, 50 N.Y.2d 277, 428 N.Y.S.2d 896, 406 N.E.2d 753, argues that the 1977 support order should be vacated under CPLR 5015, on the ground that the Family Court lacked jurisdiction to modify a separation agreement and that a jurisdictional objection can be raised at any time. However, the Court undoubtedly had jurisdiction under sections 411 and 413 of the Family Court Act to entertain the mother's petition for child support and to determine what, if any, support it should order; its conclusion as to the invalidity of the crucial clause of the separation agreement was ancillary to that determination. For the limited purpose of issuing or denying the support order sought by the mother, the court clearly had jurisdiction to consider the agreement. See Lacks v. Lacks, 41 N.Y.2d 71, 73-77, 390 N.Y.S.2d 875, 359 N.E.2d 384.

Nevertheless, this court must now part company with the mother's argument for the continued enforcement of the 1977 order. Despite the inapplicability of CPLR 5015, it is concluded on the grounds explained below that this court should re-examine the validity of the agreement's support reduction clause.

II

The Family Court is specifically granted the power to re-consider prior orders, in that section 451 of the Family Court Act provides for the court's "continuing jurisdiction" to "modify, set aside or vacate any order issued in the course of" a support proceeding. See Pavich v. Pavich, 24 A.D.2d 482, 483, 260 N.Y.S.2d 698 (2nd Dept.), reversing the Family Court because of its error in ruling that a "prior order was res judicata and that it has no revisory power." Such "revisory power," however, is generally used, as in Pavich, to adapt a support order to changed financial circumstances, whereas in the instant case the justification for revision of the 1977 order is a change in law and public policy affecting the allocation of child support between father and mother. (Point IV below).

The mother in effect contends that a vacatur of the 1977 order because of legal developments would offend the doctrine of the law of the case. The question is therefore whether the court's exercise herein of its section 451 power to vacate prior orders, is countermanded by general procedural principles.

III

On the one hand, the mother's position is supported by rulings that "a determination of a court from which no appeal has been taken ought to remain inviolate" (Matter of Huie, 20 N.Y.2d 568, 572, 285 N.Y.S.2d 610, 232 N.E.2d 642), and that "the conclusive effect of a final disposition is not to be disturbed by a subsequent change in decisional law." Slater v. American Min. Spirits Co., 33 N.Y.2d 443, 447, 354 N.Y.S.2d 620, 310 N.E.2d 300. On the other hand, however, the Court of Appeals suggested an exception to the doctrine of finality when it said that "a subsequent major change in constitutional doctrine should permit reconsideration of the original claim, at least as to its future effect." Gowan v. Tully, 45 N.Y.2d 32, 36-7, 407 N.Y.S.2d 650, 379 N.E.2d 177. Both of the Gowan grounds for reconsideration are apposite here. For, the legal basis for the 1977 order herein has indeed been undermined by a "major change in constitutional doctrine" (Point IV below), and this case concerns only the "future effect" of the 1977 order.

Further, in its ongoing vitality and repetitive enforceability, a support order shares the characteristics of an equitable decree. Thus, the special power of a court of equity "to change its decrees" is pertinent. See People v. Scanlon, 11 N.Y.2d 459, 462, 230 N.Y.S.2d 708, 184 N.E.2d 302; also Dutchess San. v. Plattekill, 73 A.D.2d 300, 302, 426 N.Y.S.2d 176 (3rd Dept.) Finally, the Court of Appeals has given some indication that present day gender-free principles in regard to family obligations, while not retroactive, should be applied to current enforcement problems. See Greschler v. Greschler, 51 N.Y.2d 368, 377-8, 434 N.Y.S.2d 194, 414 N.E.2d 694.

For the above reasons it is appropriate for this Court to use its revisory power under section 451 of the Family Court Act to consider whether enforcement of the 1977 decision and order accords with present day constitutional doctrine. The interest in finality, which underlies the rules of res judicata and the law of the case, must be balanced against other policies and against the interest in equal justice. ³ To enforce anew every week an order grounded on an outmoded decision that could not now be constitutionally issued, would deny to the movant an equality of rights with litigants in current support proceedings. Accordingly, "strict adherence to the law of the case principle in this case would be counterproductive" (see Wilson v. McCarthy, 53 A.D.2d 860, 861, 385 N.Y.S.2d 581, 2nd Dept.); and the rule of finality therefore will not be applied herein.

IV

The 1977 support order relied on a conclusion of law that the paragraph of the separation agreement "relieving the husband of his support obligation with respect to the children ... in the event his former wife's income exceeds $17,012 per year, is invalid. (Van Dyke v. Van Dyke, 278 App.Div. 446 (106 N.Y.S.2d 237); Smith v. Jones, 43 Misc.2d 315 (350, 250 N.Y.S.2d 955))." ⁴ The cited decisions Van Dyke in 1951 and Smith in 1964 denied effect to separation agreements that eliminated the father's duty of child support, the courts there emphasizing that the father had a "moral, natural, and statutory duty to support his children" (278 A.D. at p. 241, 106 N.Y.S.2d 237), that the father was "absolutely responsible" for child support, and that an "agreement which relieves a father of the support of his child is as equally objectionable as one which relieves him of the support of his wife" (43 Misc.2d at pp. 352-3, 250 N.Y.S.2d 955.)

Thus, it is clear from the citation of Van Dyke and Smith that the 1977 determination herein was based on the...