Dow v. Dow

163 Misc. 2d 1013, 622 N.Y.S.2d 856, 1995 N.Y. Misc. LEXIS 38
CourtNew York City Family Court
DecidedJanuary 31, 1995
StatusPublished

This text of 163 Misc. 2d 1013 (Dow v. Dow) is published on Counsel Stack Legal Research, covering New York City Family Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dow v. Dow, 163 Misc. 2d 1013, 622 N.Y.S.2d 856, 1995 N.Y. Misc. LEXIS 38 (N.Y. Super. Ct. 1995).

Opinion

OPINION OF THE COURT

William P. Warren, J.

This court has before it objections to the decision and order of Hearing Examiner Miklitsch dated April 4, 1994. The petitioner, represented by the County Attorney of Rockland County, objects to the dismissal of her petition brought under article 3-A of the Domestic Relations Law which sought enforcement of a Kings County Family Court order of support and collection of arrears.

On January 24, 1994 the petitioner, Marsha Dow, filed with this court a petition under article 3-A of the Domestic Relations Law of the State of New York (Uniform Support of Dependents Law [USDL]). Petitioner was a resident of Queens County, New York. Consequently, the clerk of the Queens County Family Court forwarded the petition, along with a certificate signed by a Judge of that county, to the Rockland County Family Court wherein the respondent resides. On March 8, 1994 the matter appeared on the calendar of the Hearing Examiner of this court. Petitioner was represented by the office of the Rockland County Attorney and the respondent was represented by private counsel. The Hearing Examiner dismissed the petition on that date and a formal order was signed on April 4, 1994. In said order, the Hearing Examiner stated as the reason for the dismissal, "a New York order is not a foreign order under statute.” The petitioner has objected to this determination. Respondent has not interposed a rebuttal.

The issue to be decided is whether a petitioner who is a resident or domiciliary of one county of the State of New York can maintain a proceeding under article 3-A of the Domestic [1015]*1015Relations Law to enforce the terms of a New York State order of child support against a respondent who is a resident or domiciliary of another county of the State of New York.

Petitioner herein had requested in her petition that an order be entered for the payment of arrearages, enforcement of a current support order and other relief. Annexed to the petition was a certified copy of an order of the Family Court of the State of New York, Kings County, dated January 5, 1993, issued by Hearing Examiner R. Spegele, ordering child support.

The order of the Hearing Examiner which dismissed the instant proceeding stated that a New York order is not a foreign order under statute. Article 3-A of the Domestic Relations Law is entitled the Uniform Support of Dependents Law. It is New York State’s version of the Uniform Reciprocal Enforcement of Support Act and Revised Uniform Reciprocal Enforcement of Support Act. The purpose of these statutes is to afford an expeditious and pragmatic remedy without the necessity of appearing in the resident defendant’s or respondent’s State. Through the enactment of Domestic Relations Law § 35 New York State has chosen to make available to New York residents the benefits of bringing a proceeding under Domestic Relations Law article 3-A. That section defines the terms "initiating state” and "responding state” to include "initiating county” and "responding county” wherever the petitioner and respondent are residents or domiciliaries of different counties of the same State.

Section 37-a of article 3-A of the Domestic Relations Law establishes a procedure whereby support orders of another State may be registered in New York State. This procedure allows an absent petitioner to seek enforcement of an out-of-State order once registration has been accomplished. In fact, subdivision (6) of Domestic Relations Law § 37-a reads: "(a) Upon registration the registered foreign support order shall be enforced and satisfied in the same manner as a support order issued by a court of this state.” It is clear to this court from a reading of Domestic Relations Law § 37-a that the Hearing Examiner was correct in determining that a New York State order is not a foreign support order as that term is used in section 37-a and, therefore, it cannot be registered under that section. The afore-quoted subdivision makes it perfectly clear that the registration process is for the purpose of placing a foreign support order in the same position as an order of the State of New York so that such an order may achieve the [1016]*1016same level of enforcement capability that an order of the State of New York already has. Therefore, it would be nonsensical to interpret Domestic Relations Law § 37-a as including within its ambit orders of the State of New York. However, while the procedure set forth in Domestic Relations Law § 37-a is not applicable to a New York child support order, nonetheless, for the reasons set forth below, a petitioner from one county of the State of New York may seek enforcement of a New York child support order through article 3-A of the Domestic Relations Law and, therefore, the Hearing Examiner erred in dismissing the proceeding.

Case law has held that article 4 of the Family Court Act may be interpolated into Domestic Relations Law article 3-A. In 1968 the New York Court of Appeals decided the case of Matter of Murdock v Settembrini (21 NY2d 759). A Pennsylvania petitioner commenced a proceeding which was referred to Family Court, Westchester County, pursuant to the USDL (Domestic Relations Law art 3-A). One of the decisions made by the Family Court was to award counsel fees to the petitioner. On appeal it was argued that the Family Court had no jurisdiction to award counsel fees since the proceeding was under article 3-A of the Domestic Relations Law rather than article 4 of the Family Court Act. The Appellate Division affirmed the Family Court determination (26 AD2d 953) and the Court of Appeals similarly affirmed. While no opinion was written by the Court, the affirmance implicitly accepted the Family Court determination that counsel fees, although not specified as available in Domestic Relations Law article 3-A, may be awarded since the authority for such an award is found in article 4 of the Family Court Act.

In Matter of Lee v De Haven (87 AD2d 576), the Second Department was reviewing a determination of the Family Court, Nassau County, which, inter alia, directed entry of a money judgment for arrears in a proceeding under article 3-A of the Domestic Relations Law. Appellant therein argued that the Family Court did not have jurisdiction to enter a money judgment since Domestic Relations Law article 3-A did not explicitly give the court such authority. In rejecting such a contention the Court held: "Appellant’s argument that the Family Court lacked jurisdiction to enter a money judgment for arrears is without merit. While such jurisdiction is not explicitly conferred by section 34 of the Domestic Relations Law, it is conferred by subdivision 1 of section 460 of the Family Court Act, which is made applicable to proceedings [1017]*1017under the Uniform Support of Dependents Law by subdivision 1 of section 37 of the Domestic Relations Law (see Matter of Gemmiti v Beagle, 94 Misc 2d 588).” (Matter of Lee v De Haven, supra, at 576-577.)

More recently the Appellate Division once again recognized the tendency to make certain provisions of article 4 of the Family Court Act applicable to USDL proceedings. (See, Matter of Martin v Martin, 127 AD2d 266, citing Matter of Murdock v Settembrini, 21 NY2d 759, supra; Matter of Schneider v Schneider, 72 Misc 2d 423; Griffin v Griffin, 89 AD2d 310; Sorbello v Cook,

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Related

Murdock v. Settembrini
235 N.E.2d 220 (New York Court of Appeals, 1968)
Lee v. De Haven
87 A.D.2d 576 (Appellate Division of the Supreme Court of New York, 1982)
Griffin v. Griffin
89 A.D.2d 310 (Appellate Division of the Supreme Court of New York, 1982)
Martin v. Martin
127 A.D.2d 266 (Appellate Division of the Supreme Court of New York, 1987)
Schneider v. Schneider
72 Misc. 2d 423 (NYC Family Court, 1972)
Sorbello v. Cook
93 Misc. 2d 998 (NYC Family Court, 1978)
Gemmiti v. Beagle
94 Misc. 2d 588 (NYC Family Court, 1978)

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Bluebook (online)
163 Misc. 2d 1013, 622 N.Y.S.2d 856, 1995 N.Y. Misc. LEXIS 38, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dow-v-dow-nycfamct-1995.