This case involves the enforcement of a sister-state divorce judgment, with respect to arrears in alimony and support payments, pursuant to the ‘Uniform Enforcement of Foreign Judgments Act’ (article 54 of the CPLR) brought before the Supreme Court, Special Term.
Sometime in Junuary 1973, the plaintiff-wife commenced an action for divorce in the Superior Court of the State of Connecticut where she was then living and has continued to reside with her two minor children. On 16 April 1973, while the action was pending, the parties executed a separation agreement – semimonthly payments to the plaintiff for alimony and child support, among others. Thereafter, the plaintiff was granted a judgment of absolute divorce by the Connecticut court, specifically incorporating the terms of the separation agreement, the agreement surviving and not merging into the decree.
Defendant resided in Manhattan when the separation agreement was executed, and in Brooklyn when the divorce judgment was granted. There is no question of the defendant appearing in and being represented by counsel in the divorce action. Defendant currently lives in Brooklyn and is a practicing veterinarian.
Plaintiff is a housewife with part-time employment as a teacher in Stamford, Connecticut where her gross annual pay is $3,000.
According to plaintiff, and it is not disputed by the defendant, from 16 July 1975 to 16 January 1976 defendant has been paying only one-half of the required amount due as alimony and support payment.
On 6 October 1975, the plaintiff brought a motion in the Superior Court in Connecticut to hold the defendant in contempt for his failure to make full alimony and support payment to the plaintiff as required by the divorce judgment.
On 30 October 1975, the defendant was found in contempt of court and was ordered to pay arrears in the amount of $3,493 covering the period 16 July 1975 through 16 October 1975 plus $350 in counsel fees for a total judgment of $3,843.
The defendant having failed to pay the $3,843 and having accumulated additional arrears of $3,165.60, the plaintiff sought enforcement of these unpaid amounts in the courts of this State pursuant to article 54 of the CPLR.
First, plaintiff filed both foreign judgments in compliance with the requirements of CPLR 5402(a) – the divorce decree and the contempt order along with accompanying affidavits in the office of the County Clerk. Plaintiff set forth in each affidavit the amount of the respective judgments remaining unsatisfied, viz.: $3,165 as to the judgment of divorce and $3,843 as to the contempt judgment.
Second, plaintiff moved by order to show cause stating the following relief: “(1) Pursuant to Domestic Relations Law, Section 245, adjudging the defendant to be in contempt of court for his failure to fully comply with the alimony and support provisions of the judgment of divorce herein, dated 16 August 1973, and with the separation agreement between the parties, dated 16 April 1973, both heretofore filed in the County Clerk’s Office of Kings County, in that defendant is in default in the payment of alimony and support in the total sum of $3,165.60 up to and including 16 January 1976; (2) Pursuant to Domestic Relations Law, Section 244, directing the entry of a money judgment in the sum of $3,165.60 against defendant and in plaintiff’s favor; (3) Pursuant to Domestic Relations Law, Sections 244 and 245 and Section 5402(a), CPLR, directing the entry of a money judgment in the sum of $3,843.00 against defendant and in plaintiff’s favor and adjudging defendant to be in contempt of court for his failure to comply therewith; (4) Pursuant to Personal Property Law, Section 49(b), directing the Animal Hospital of Brooklyn, Inc., whose principal place of business is located at 2270 Flatbush Avenue, County of Kings, City and State of New York, to deduct weekly from the salary and earnings of defendant, a sum to be determined by this Court, and further directing the said employer to forward, weekly, the sums so accumulated to the plaintiff at her residence, 25 Rolling Wood Drive, Stamford, Connecticut 06905, or at such other place as she may hereafter designate in writing for the support of the plaintiff and the two (2) infant issue of the marriage; or, alternatively, (5) Directing the defendant, JOEL EHRENZWEIG, to post a bond in a sufficient sum to be fixed by the Court, as security for all future alimony and child support payments; (6) Pursuant to Domestic Relations Law, Section 237, granting plaintiff a counsel fee for the services necessarily rendered and to be rendered by her attorney in connection with the instant application.”
Defendant cross-moved for an order dismissing the motion pursuant to CPLR 3211(a)(2) and/or CPLR 3211(a)(8) on the grounds that the court neither has jurisdiction of the subject matter of this action nor jurisdiction of the person of the defendant.
Since the court has personal jurisdiction over defendant in this proceeding, this branch of the defendant’s cross motion shall be disposed of immediately and is hereby denied. The court’s jurisdiction of the subject matter will be decided later as this issue is so intertwined with plaintiff’s motion that a determination of the latter will resolve the former.
Defendant does not dispute the substantive claims asserted by the plaintiff as to the amount of the arrears, but instead the defendant addresses himself exclusively to the jurisdictional and procedural deficiencies in the relief being sought by the plaintiff. Specifically, and with respect to each item of relief requested, the defendant raises the following objections: (1) contempt; (a) plaintiff cannot seek this remedy without first having obtained a judgment in this State for the arrears and showing defendant’s willful non-compliance; (b) the status of the law with respect to an application for a contempt adjudication against the defendant is in doubt in view of this court’s holding in the case of Darbonne v. Darbonne, 85 Misc.2d 267, 379 N.Y.S.2d 350; (2) entry of a money judgment in the sum of $3,165.60 – the amount is for arrearages due from 1 November 1975 up to and including 16 January 1976; plaintiff cannot sue directly for this amount in New York unless she first reduces said amount to a judgment in the State of Connecticut; (3) Entry of a money judgment in the sum of $3,493 – this amount was found owing to plaintiff by the Connecticut contempt judgment rendered against the defendant; this judgment is not capable of enforcement pursuant to Article 54 of the CPLR since the order was granted on a default in defendant’s appearance (CPLR 5401); that defendant did not appear personally in the proceeding or authorize any attorney to appear on his behalf and that the service of the contempt motion upon the attorney who represented defendant in the divorce action was of no effect inasmuch as the attorney had previously withdrawn as defendant’s counsel; (4) payroll deduction – personal Property Law section 49–b contemplates a court order of a New York State court, not one from a sister-state; (5) posting of a bond as security – the defendant did not file any specific objection to this request for relief; and (6) counsel fee application – the plaintiff’s motion is not one of the instances enumerated in DRL section 237 for the awarding of a counsel fee.
Here, plaintiff is proceeding under article 54 of the CPLR, which article is cited as the ‘Uniform Enforcement of Foreign Judgments Act’ (CPLR 5408).
Before the enactment of article 54, there was no particular machinery in New York for the enforcement of foreign judgments. Generally, the judgment creditor had to bring a new and independent action in New York upon an out-of-state judgment in order that it be docketed and enforced in this state. While summary judgment pursuant to CPLR 3212 and CPLR 3213 was and still is available to perhaps avoid a full-scale trial of this new action in New York; nevertheless, the creditor was put to the burden and expense of having to commence such a plenary action in order to enforce his foreign judgment in this state. Article 54 was adopted to streamline this procedure by providing a simpler, speedier and less expensive method of enforcement. The article is similar to that adopted in the Federal District Courts, 28 U.S.C.A. § 1963, and is based upon the 1964 Uniform Enforcement of Foreign Judgments Act. The basic philosophy and objective of these acts is that a judgment entitled to full faith and credit, rendered as a result of a plenary proceeding in a sister-state court, need not be relitigated when sought to be enforced in the second state. Instead, as CPLR 5402 provides, the foreign judgment need only be registered in New York and once filed, the judgment may then be enforced in the same manner as though it were a judgment rendered in the Supreme Court of this state, although the former procedures still remain available (CPLR 5406).
The issues to be resolved first are as follows: (1) may article 54 be used to enforce the financial provisions of a matrimonial judgment or decree of a sister state? (2) if so, was article 54 properly availed of under the facts in this case, both as to the divorce and as to the contempt judgments?
If the answers to ‘1’ and ‘2’ are both yes, then the court will have to deal with the multiple relief requested by the plaintiff and the objections raised thereto by the defendant.
The, the court must now determine the applicability of the Uniform Enforcement of Foreign Judgments Act, for if article 54 has been improperly invoked, the plaintiff’s motion must be denied in its entirety and the second branch of defendant’s cross motion granted.
The court’s rulings are as follows:
Article 54 applies to ‘foreign judgments’ as defined in CPLR 5401. With three exceptions, the term foreign judgment refers to ‘Any judgment, decree or order’ of a sister state (CPLR 5401). The quoted language appears to be clear and unambiguous and perhaps leads to the conclusion that article 54 is intended to cover all judgments, and that ‘it makes no difference whether the foreign judgment requires the payment of money, or orders or restrains the doing as an act, or declares rights or duties of any other character in law or quoted, in probate, guardianship, receivership or any other type of proceedings.’ However, it is not necessary for the court to rule whether article 54 applies to all judgments, but within the confines of this case it suffices to find that article 54 may be used to enforce the financial provisions of a sister-state divorce judgment or decree, provided none of the exceptions set forth in CPLR 5401 apply.
The first exception, as stated in the affirmative, is that the sister-state judgment, decree or order must be ‘entitled to full faith and credit in this state’ (CPLR 5401) within the meaning of Article IV, Section 1 of the United States Constitution which mandates that ‘Full Faith and Credit shall be given in each State to the judicial proceedings of every other State.’ The second and third exceptions exclude judgments ‘obtained by default in appearance, or by confession of judgment’ (CPLR 5401).
There being no question as to the applicability of the second and third exceptions above to plaintiff’s Connecticut divorce judgment, the focus is now on whether the alimony and support arrears resulting therefrom are entitled to enforcement in this state under the full faith and credit clause. Well-settled is the law that a sister-state decree for alimony and support will be accredited full faith and credit as to any arrears if the right to the unpaid installments becomes absolute and ‘vested’ as they become due, provided no modification of the decree has been made prior to the maturity of the installments. However, where the foreign court which rendered the divorce judgment has the discretion to modify outstanding arrears retrospectively, then such arrears are not considered absolute and vested and the decree for alimony and support is therefore not entitled to full faith and credit with respect thereto.
Which of the foregoing principles apply in the State of Connecticut?
Pursuant to the provisions of CPLR 4511, the court is empowered to take judicial notice of any statute or law of a sister state and pass upon its validity and effect. The parties have sought to aid the court in this regard by citing authorities in their accompanying affidavits.
According to the defendant, Connecticut General Statutes Annotated (C.G.S.A.), section 46–54 and on Connecticut Practice Book Annotated, Superior Court Rules, section 381 supports its position that alimony awards are subject to modification in Connecticut. C.G.S.A. section 46–54 provides in pertinent part: ‘any final order for the periodic payment of permanent alimony or support may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party.’
Indeed, it is questionable whether the foregoing provision proferred by defendant is applicable in view of the section’s effective date being subsequent to the date of the divorce decree – C.G.S.A. § 46–64b. Nevertheless, it is the court’s conclusion that this statute as well as its predecessor, C.G.S.A. § 46-21, which provides: ‘Any order for the payment of alimony from income may, at any time thereafter, be set aside or altered by such court.’, does not on its face empower the Connecticut courts to modify Accrued unpaid installments of alimony or support. The same conclusion is reached as to section 381 of the Rules for the Superior Court as this section merely gives the court discretion to determine whether a modification of future payments should be ordered prior to the defendant’s payment of any arrears.
The court must now turn to Connecticut case law.
According to plaintiff, the case of DeGolyer v. DeGolyer, 13 Conn.Supp. 339 (1945), is applicable. In that case, the court held that that: ‘Under the law of New York, As under our own law, a decree providing for periodic alimony payments is subject to modification as to future payments. Past due payments, on the other hand constitute vested property rights not subject to modification, and it is only such payments which are enforceable in another jurisdiction.’
While the reference to New York law is incorrect as to arrears, in the absence of any authority to the contrary, the court, accepts the case as expressing the law of the State of Connecticut. It is so cited in the Annotations following C.G.S.A., section 46–21 and was relied upon in the New York case, Rosmini v. Rosmini, City Ct., 230 N.Y.S.2d 319, 320–321. Plaintiff’s rights to the unpaid installments of alimony and support become vested as they become due and a Fortiori that the Connecticut divorce judgment must be given full faith and credit as to any arrears.
Accordingly, the Connecticut divorce decree meets the definition of a ‘foreign judgment’ entitled to be filed in the herein state pursuant to article 54. There being no procedural objections by defendant as to the filing, and the court being presumptively satisfied that the requirements of CPLR 5402(a), 5403 and 5405 have been met, the Connecticut divorce decree has been validly filed and the court will thereby regard it and enforce it as though it were a judgment of the court (CPLR 5402(b)).
With respect to the Connecticut contempt judgment, the court is unable to reach the same conclusion. According to defendant, this judgment cannot be registered pursuant to article 54 as it was obtained by defendant’s ‘default in appearance’ (CPLR 5401).
Even though the plaintiff, in her affidavit accompanying the filing, stated perfunctorily that the judgment was not so obtained, the defendant has established to the satisfaction of the court that he did not appear in the contempt proceeding, to wit, he did not serve an answer or a notice of appearance. The allegation that he may have had notice of the proceeding is of no consequence if in fact the defendant did not ‘appear.’
Hence, unlike the divorce decree, the Connecticut contempt order does not constitute a ‘foreign judgment’ subject to enforcement under article 54 and plaintiff’s attempt to file this judgment in New York pursuant to CPLR 5402 is invalid.
After having concluded that the Connecticut divorce judgment was properly filed under article 54, it is now time to examine the relief requested by the plaintiff.
Under Section 244 of the Domestic Relations Law, where the husband in an action for divorce, etc., makes default in paying any sum of money as required by the judgment or order directing the payment thereof, the court, in its discretion may make an order directing the entry of judgment in the amount of such arrears. Plaintiff seeks this relief with respect to the $3,165 in alimony and support arrears owing by defendant for the period 1 November 1975 through 16 January 1976.
Section 244 is deemed the exclusive remedy for the entry of such a judgment and that section require only an application to the court – as plaintiff has done by the instant motion – and not an independent action as suggested by the defendant. Since the Connecticut divorce judgment is now to be regarded as a domestic judgment (CPLR 5402(b)), plaintiff properly applied for this relief.
There being no other defense or objections raised by the defendant, the court grants this part of plaintiff’s motion in the full amount requested of $3,165.
Also, plaintiff seeks entry of judgment as to arrears in the sum of $3,493 covering the period 16 July 1975 through 16 October 1975, and as to the $350 counsel fees awarded by the Connecticut court in the contempt judgment. Since plaintiff bases this relief solely on the filing of the Connecticut contempt judgment pursuant to article 54, which filing the court has already held invalid, the court must now decide whether to dismiss this branch of plaintiff’s motion pursuant to defendant’s cross motion or grant the relief on some other ground.
The court is not disposed to deny plaintiff this relief, inasmuch as the fact and the amount of these arrears are not in dispute and the underlying divorce judgment has been validly filed in accordance with the provisions of the Uniform Enforcement of Foreign Judgments Act. If the plaintiff’s affidavit accompanying this filing had made reference to the unpaid amount of $3,493, in addition to the $3,165 in arrears already set forth therein, the court would readily have granted entry of judgment as to both sums and the aborted filing of the contempt judgment would have been of no consequence except as to the counsel fees. The question now is whether or not the omission from the affidavit of the $3,493 in arrears be fatal on the motion to plaintiff’s request for relief as to same.
Under the circumstances, the court thinks not. There is no need of subjecting the parties or the court to the burden and expense of a second proceeding at this time where the plaintiff files a new affidavit, making reference to the already filed contempt judgment and setting forth the arrears of $3,493, and thereafter brings on another petition for entry of judgment as to this amount. Rather, there has been substantial compliance with article 54 as regards the arrears of $3,493. Here, the underlying foreign judgment has been filed, the accompanying affidavit is in proper form except for the amount of the arrears and this minor defect has been cured by virtue of the notice otherwise given to the defendant as to these arrears.
Accordingly, entry of judgment as to an additional $3,493 in arrears is ordered, but the relief as to the $350 counsel fees, which award was not granted in the divorce judgment, is denied.
Plaintiff’s next two requests for relief – wage attachment and posting of security – appear to be sought only as to future payments of alimony and support and not as to the arrears. Nonetheless, both remedies would be available if plaintiff had so requested them, in enforcing the payment of arrears.
The Connecticut divorce decree, having been properly filed pursuant to article 54 of the CPLR, is now to be considered as a domestic judgment for all purposes and may be enforced in the same manner as a domestic judgment (CPLR 5402(b)).
Wage deduction in accordance to Personal Property Law Section 49-b and posting of security in accordance to DRL Section 243 are two such enforcement devices. However, both remedies are discretionary with the court, whether being imposed as to arrears or as to future payments.
In light of the fact that defendant had been making full payments for over two years, that his reduced one-half payments are of recent origin albeit continuous, that defendant is a professional man with an alleged substantial practice and that this matter is before this or any New York court for the first time, the court, in its discretion, is not convinced that resort to wage deduction or posting of security is necessary.
Accordingly, the court denies these branches of plaintiff’s motion, conditioned, however, upon (1) immediate resumption by defendant of full payments of alimony and support and (2) payment of all arrears involved, including counsel fees awarded in the Connecticut contempt judgment and which may be awarded on the herein motion, within sixty (60) days after service of a copy of the order. Also, the plaintiff is granted leave to renew her motion for a wage deduction and the posting of security, in the event the defendant fails to honor either or both of these conditions,
For similar reasons, and because of the relief granted above as to the arrears, the court in its discretion also denies that branch of the order to show cause seeking to hold the defendant in contempt, but without prejudice to its renewal by the plaintiff in the event the other relief proves unavailing.
The last branch of plaintiff’s relief is the request for counsel fees in connection with the instant application.
According to defendant, this proceeding is not one of the enumerated instances in DRL section 237 in which counsel fees may be awarded. The court disagrees.
Under Section 237(b), counsel fees are available ‘upon any application by order to show cause concerning custody, visitation or Maintenance of a child.’ Clearly, the instant motion to enforce the payment of arrears, relating in part to child support, concerns the ‘maintenance of a child.’
Furthermore, DRL section 238 states that in any proceeding pursuant to DRL 244, inter alia, the court may in its discretion require the husband to pay the wife’s expenses in bringing, carrying on or defending such action or proceeding.
Accordingly, reasonable counsel fees in the sum of $850 for plaintiff is awarded.
In sum, the defendant’s cross-motion for dismissal of this proceeding for lack of jurisdiction over the subject matter is denied. The proceeding is properly before the court pursuant to article 54 of the CPLR.
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