Walker v. Walker

• Decision Date: 15 March 1976
• Parties: Michael WALKER, Appellant, v. Joan WALKER, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 310

381 N.Y.S.2d 310

51 A.D.2d 1029

Michael WALKER, Appellant, v. Joan WALKER, Respondent.

Supreme Court, Appellate Division, Second Department.

March 15, 1976.

Stanley E. Kooper, Brooklyn, for appellant.

Burton G. Rudnick, Brooklyn, for respondent.

Before LATHAM, Acting P.J., and DAMIANI, CHRIST, SHAPIRO and TITONE, JJ.

MEMORANDUM BY THE COURT.

In a contempt proceeding, appellant appeals from an order of the Supreme Court, Kings County, dated December 5, 1975, which, after a hearing, Inter alia (1) adjudged him in contempt and (2) directed 'that the Sheriff of any County of the State of New York or of the City of New York, to whom a certified copy of this order shall be delivered' should, 'without further process, take the body of' the appellant and commit him to jail, 'to be there detained in close custody' until he paid a fine in the amount of the unpaid arrearages in alimony, child support and counsel fees due the plaintiff, appellant's divorced wife, together with the Sheriff's fees.

Order affirmed, with costs.

The principal issue in this case arises from appellant's challenge to the constitutionality of section 245 of the Domestic Relations Law on the ground that it denies him due process. Section 245 deals with enforcement by contempt proceedings of a judgment or order in an action for divorce. It provides, in relevant part:

'Where the husband, in an action for divorce * * * makes default in paying any sum of money as required by the judgment or order directing the payment thereof, and it appears presumptively, to the satisfaction of the court, that payment cannot be enforced by resorting to the security, if any, given as prescribed by statute, the court, in its discretion, may make an order requiring the husband to show cause before it at a time and place therein specified why he should not be punished for his failure to make the payment; and thereupon proceedings must be taken to punish him, as prescribed in article nineteen of the judiciary law for the punishment of a contempt of court other than a criminal contempt * * * Such order to show cause may also be made without any previous sequestration or direction to give security where the court is satisfied that they would be ineffectual. No demand of any kind upon the husband shall be necessary in order that he be proceeded against and punished for failure to make any such payment * * * personal service upon the husband of an uncertified copy of the judgment or order under which the default has occurred shall be sufficient.'

Appellant relies on the decision of a three-judge Federal constitutional court of the United States District Court for the Southern District of New York in Vail v. Quinlan, 406 F.Supp. 951, which declared sections 756, 757, 770, 772, 773, 774 and 775 of article 19 of the Judiciary Law unconstitutional, and enjoined further application of those sections. The question is whether the ruling in Vail is applicable to section 245 of the Domestic Relations Law, and whether this court either is bound to follow the Federal court's holding or, if not so bound, should apply its reasoning in this case.

It should be noted at the outset that the determination in the Vail case has been stayed by Judge MARSHALL pending the determination of the appeal therefrom to the Supreme Court of the United States, 406 F.Supp. 951 (N.Y.L.J., Feb. 19, 1976, p. 1, col. 2). In addition, it is clear that this court is not bound by that determination (United States ex rel. Lawrence v. Woods, 7 Cir., 432 F.2d 1072; 8 N.Y.Jur. Constitutional Law, § 45; and see a discussion of this issue in...