South Carolina Dept. of Social Services v. James C.D.

• Decision Date: 13 June 1983
• Parties: In the Matter of SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES o/b/o Sallie M.H., Petitioner, v. JAMES C.D., Respondent.
• Court: New York Family Court

Page 942

464 N.Y.S.2d 942

119 Misc.2d 649

In the Matter of SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES o/b/o Sallie M.H., Petitioner, v. JAMES C.D., Respondent.

Family Court, City of New York Kings County.

June 13, 1983.

Frederick A.O. Schwarz, Jr., Corp. Counsel, Brooklyn, for petitioner; Joseph Greenberg, Asst. Corp. Counsel, Brooklyn, of counsel.

Harmon & Rappaport, Flushing, for respondent; Susan S. Harmon, Flushing, of counsel.

DECISION AND ORDER

SARA P. SCHECHTER, Judge:

In this proceeding initiated pursuant to Article 3-A of the Domestic Relations Law, (Uniform Support of Dependents Law) by the South Carolina Department of Social Services on behalf of the maternal grandmother of respondent's 10 year old son, support is sought from respondent in accord with the terms of a divorce decree entered in the Circuit Court of Shelby County, Tennessee, on December 16, 1976.

Respondent moves to dismiss the petition on the grounds that 1) petitioner lacks capacity to sue; 2) collateral estoppel; and 3) lack of a proper party, to wit, the mother of the child for whom support is sought. Alternatively, respondent requests suspension of his support obligation pending enforcement of his visitation rights. Respondent also cross moves for custody of his son.

The motion to dismiss and cross-motion for custody are denied. The application for suspension of the support obligation pending granting of visitation is granted.

The application for dismissal based on lack of capacity to sue must be denied since the term "petitioner" is defined in the Uniform Support of Dependents Law (hereinafter USDL) as "each dependent person for whom support is sought in a proceeding instituted pursuant to this article." DRL § 31(5). For USDL purposes, therefore, the true petitioner is the child himself, and we do not reach the question of whether either the South Carolina Department of Social Services or the child's grandmother who appears to have de facto custody of Jeffery, would have standing to initiate a proceeding pursuant to Section 422 of the Family Court Act.

The application for dismissal on the grounds of collateral estoppel must be denied, even though respondent's support obligation has twice previously been suspended, as is evidenced by the court's own records in cases bearing Docket numbers U-3559/78 and U-1639/88. The petition currently before the court states no claim for arrears, and must therefore be construed as an application to reinstate respondent's obligation, which unless suspended or otherwise terminated continues until the child reaches the age of 21 years. On consent in the instant proceeding respondent was ordered on September 23, 1982 to resume payment of support in the amount of $100 per month to be held in escrow by the Support Collection Unit pending the outcome of this litigation.

Respondent's cross-motion for the immediate award of custody of the child is denied for lack of subject matter jurisdiction, as none of the criteria set forth in Section 75-d of the Domestic Relations Law (Uniform Child Custody Jurisdiction Act) are present in the instant case. The child is not physically present in New York, and neither the child nor the child's custodian has any significant connection with this state, nor, with the exception of the evidence concerning the lack of visitation with the father, does this court have substantial evidence concerning the child's present or future care. For this court to attempt to exercise custody jurisdiction would, therefore, defeat the worthy purposes of the act which are set forth in Section 75-b of the Domestic Relations Law.

On the support question respondent asserts in this proceeding, as he has successfully asserted twice previously, that the continuing and unjustified denial of visitation with his son warrants suspension of his obligation to support the child. The corporation counsel, who is statutorily designated to represent the petitioner in USDL proceedings, DRL § 31, was unable to offer any evidence to controvert respondent's claim that the visitation rights awarded him by the 1976 divorce decree have been consistently thwarted.

Corporation counsel asserts, however, that the recent decision of Griffin v. Griffin, 89 A.D.2d 310, 455 N.Y.S.2d 271 (2d Dept.1982) precludes this court's consideration of the denial of visitation to respondent in a USDL proceeding. This interpretation of Griffin is overly broad.

The instant case differs significantly from the Griffin case in that respondent in the instant case was awarded specific rights of visitation in the same divorce decree which awarded support. The "Settlement of Property Rights and Child Custody" which was incorporated into the divorce decree, states, "... the Husband shall have visitation rights as specifically set out herein." (Emphasis added). The document then goes on to provide for the child to visit the father for Christmas every other year and for New Years on the alternate years, and during summer vacations and other school vacations upon one month's notice to the wife. The specificity of these provisions is in sharp contrast to the award of "reasonable visitation" in Griffin. The court in the case at bar is well able to measure compliance with the clear and specific terms of visitation as provided in the divorce decree without imposing its own assessment of what is reasonable and good for the child upon another jurisdiction which may be in a far superior position to make such an evaluation.

Having concluded that suspension of support is available in this USDL proceeding to the same extent as if both parties were within the State of New York, the court must now inquire whether that relief is appropriate on the facts of the instant case. Even where the visitation right has been infringed, suspension of the support obligation is not automatic but rather must be considered on a case-by-case basis. Courten v. Courten, 92 A.D.2d 579, 459 N.Y.S.2d 464 (2d Dept.1983); Lee v. DeHaven, 87 A.D.2d 576, 447 N.Y.S.2d 739 (2d Dept.1982).

The reported cases in which the support obligation has been suspended fall into two categories: The first are cases in which the suspension is presumptively temporary because the court is enjoining the custodial parent from removing the child from the jurisdiction or simultaneously ordering the child's return to the jurisdiction, cf. Weiss v. Weiss, 52 N.Y.2d 170, 436 N.Y.S.2d 862, 418 N.E.2d 377 (1981); Strahl v. Strahl, 66 A.D.2d 571, 414 N.Y.S.2d 184 (2d Dept.1977), aff'd 49 N.Y.2d 1036, 429 N.Y.S.2d 635, 407 N.E.2d 479 (1980); or where further court proceedings were pending at the time of the suspension, cf. Deutsch v. Deutsch, 57 A.D.2d 941, 395 N.Y.S.2d 82 (2nd Dept.1976); Cohen v. Cohen, 56 A.D.2d 784, 392 N.Y.S.2d 459 (1st Dept.1977). The second are cases in which only arrears are at issue, either because the custodial parent has voluntarily returned to the jurisdiction with the child, cf. Callender v. Callender, 37 A.D.2d 360, 325 N.Y.S.2d 420 (1st Dept.1971), or because the court is shifting the child's custody to the parent whose visiting rights were infringed, cf. Courten v. Courten, supra.

In a third line of cases the non-custodial parent's obligation to support is not suspended but is modified downward as recompense for the additional expense incurred in visiting after the custodial parent "justifiably" relocates with the child in a distant state, cf. Lee v. DeHaven, supra, Small v. Schnitzer, 85 A.D.2d 641, 445 N.Y.S.2d 13 (2d Dept.1981); Giacopelli v. Giacopelli, 62 A.D.2d 999, 403 N.Y.S.2d 303 (2d Dept.1978).

The case before the court presents a fact pattern which is in some respects simpler but is ultimately more difficult. Respondent does not here contest the right of his former wife to relocate with the child to another state. The visitation provided for in the divorce decree, which was to be in blocks of time during school vacations rather than on isolated days or weekends, can be carried on almost as easily at a distance as it could if the parents lived in close proximity. Indeed, the parties may well have contemplated their geographic remoteness when arriving at their original agreement concerning visitation.

What respondent does assert, and petitioner does not deny, is the continuous refusal of the child's mother and grandmother, petitioner herein, to make the child available for visitation, notwithstanding the fact that respondent has purchased airplane tickets for the child on at least two occasions and has repeatedly offered to pay the cost of transportation in connection with the visitation. No explanation has been offered in this proceeding by the petitioner for this conduct. Thus, it is virtually conceded that the deprivation of visitation is without justification.

Most of the factors which the court in Giacopelli, supra, presented for consideration generally on the question of suspension of support are, therefore, not relevant here. We need not consider whether the distance effectively frustrated regular visitation or whether the decree expressly prohibited relocation or the reason behind the mother's move to South Carolina. The very difficult question which is presented, however, is whether the court should enter an order, the effect of which is to leave the child indefinitely without financial support from the father. Since respondent's cross-motion for custody has been denied for the reasons stated above, and since this court is without authority otherwise to compel petitioner to honor the visitation provisions, this court by suspending support can at best formalize a stand-off.

Since the reported cases have not contemplated such a long-term deprivation of child support, there is little appellate guidance available to the court in this situation. In order to formulate appropriate criteria for the exercise of discretion, therefore, we first seek to understand the theoretical basis upon which suspension of support is premised.

In Callender...