A New York Family Lawyer said that before the Court in this child support proceeding is Respondent’s motion to dismiss the petition, pursuant to Rule 3211(a)(5) of the C.P.L.R., on the ground of res judicata in that Petitioner’s application for the relief she seeks herein was previously denied by the Supreme Court of Bronx County. The undisputed facts and circumstances surrounding this motion are as follows: On March 2, 1979, a judgment granting Petitioner a divorce from Respondent was entered in Supreme Court, Bronx County. The judgment, which contained no provision for child support, expressly stated that “Family Court is awarded concurrent jurisdiction herein.” Thereafter, in the latter part of 1979, Petitioner brought a proceeding in Supreme Court to modify the judgment so as to include child support payments for the parties’ adopted daughter, and their son. Over the objections of Petitioner’s counsel, the Court by order dated February 19, 1980, referred the matter to a Special Referee to inquire and report with respect to the issues of Respondent’s financial status and ability to pay, the needs of the parties, and visitation.
A New York Child Custody Lawyer said that, a hearing before the Special Referee was held on April 24th and April 25th, 1980, and in the course of that hearing, Petitioner’s counsel called Respondent as a witness. In addition, Petitioner herself testified, but following her refusal to answer proper and pertinent questions on cross examination, the Special Referee granted Respondent’s application to strike Petitioner’s testimony. On June 30, 1980, the Special Referee submitted his report to the Supreme Court, Bronx County. Included in the Referee’s report was his recommendation that the petition be dismissed. Thereafter, on August 26th, 1980, the Supreme Court, over Petitioner’s objection, found “that the findings of fact and conclusions of law set forth in the Referee’s report accord with the preponderance of evidence adduced at the hearing held before him, and that no issues remain to be tried,” and granted Respondent’s motion for an order confirming the Special Referee’s report, and dismissing the petition to modify the judgment of divorce so as to include child support payments and visitation. A judgment dismissing the petition was also entered on August 26, 1980, and from that judgment, no appeal was taken by Petitioner.
A Long Island Family Lawyer said that, on July 11, 1980, Respondent herein filed a petition in this Court seeking an order of visitation with respect to the parties’ son. In connection with that petition, on October 24, 1980, the Court, on consent and without prejudice, made a temporary order of child support of $20.00 per week, payable by Respondent herein. Thereafter, the parties reached an agreement in the visitation proceeding and a final order with respect to visitation was entered by the undersigned on January 9, 1981. In addition, on that day, Petitioner filed the instant petition for child support. The support petition included no mention of the Supreme Court proceedings that were dismissed in August, 1980, and contained no allegations of any material change in circumstances subsequent to the dismissal of those proceedings. However, in Petitioner’s attorney’s affirmation in opposition to Respondent’s motion to dismiss, the following statement appears: “The circumstances of the parties have changed in that the Respondent has not made any child support payment since February 19th, 1979, until October 31, 1980, when he made his first child support payment in the sum of $20.00.”
A New York Child Custody Lawyer said the issue in this case is whether on the motion is the question of whether, in the facts and circumstances present here, the Supreme Court’s judgment of dismissal operates as a bar to the determination by this Court of Petitioner’s action for child support.
Under the doctrine of res judicata, a final judgment on the merits rendered by a court of competent jurisdiction generally bars a subsequent action between the same parties on the same cause of action. As to whether or not, for res judicata purposes, a judgment of dismissal is “on the merits,” some guidance is furnished by Rule 5013 of the C.P.L.R., which states: “A judgment dismissing a cause of action before the close of the proponent’s evidence is not a dismissal on the merits unless it specifies otherwise, but a judgment dismissing a cause of action after the close of the proponent’s evidence is a dismissal on the merits unless it specifies otherwise.”
In the instant cause, the Supreme Court’s judgment dismissing the petition did not expressly state whether or not it was on the merits. However, the Supreme Court’s order upon which the judgment of dismissal was based stated, in pertinent part: “that the findings of fact and conclusions of law set forth in the Referee’s report accord with the preponderance of evidence adduced at the hearing held before him, and it further appearing that no issues remain to be tried, it is ordered that defendant have judgment dismissing plaintiff’s petition.” From this language, it is clear that the Supreme Court’s judgment of dismissal was entered after the close of Petitioner’s case and that pursuant to Rule 5013, it was a judgment of dismissal “on the merits.”
This conclusion as to the nature of the prior judgment dismissing the petition is in no way altered by the fact that the Special Referee had granted Respondent’s application to strike Petitioner’s testimony following her refusal to answer pertinent questions on cross examination. It is well-settled that where a witness, following his direct examination, unjustifiably refuses to answer material questions on cross examination, the witness’ direct testimony should be stricken. In the case at bar, this sanction undoubtedly resulted in, or at least contributed to, the Supreme Court’s determination that the Referee’s reported findings of fact and conclusions of law accorded with the preponderance of the evidence. The fact that the sanction imposed by the Referee was a drastic one does not, in any way, alter the “on the merits” effect of the judgment of dismissal. Indeed, to hold otherwise would be to permit a litigant subject to such sanctions to flout the trial court’s rulings with impunity, and to circumvent the appellate process as well.
In an effort to overcome the res judicata effect of the Supreme Court’s judgment, petitioner argues that Section 413 of the Family Court Act establishes an absolute duty on the part of parents to furnish child support in accordance with their means and the child’s needs. In addition, petitioner contends that pursuant to Section 240 of the Domestic Relations Law, the Supreme Court’s judgment would not preclude the reinstitution of an action for child support in the Supreme Court, and that under Section 461 of the Family Court Act, which establishes the latter court’s concurrent jurisdiction, a new action for child support may also be commenced in Family Court. Finally, petitioner appears to contend, albeit somewhat elliptically, that because circumstances have changed subsequent to the entry of the Supreme Court’s order of dismissal, the prior judgment does not in any event constitute a bar to these proceedings.
Prior to the Supreme Court’s “on the merits” dismissal of Petitioner’s child support proceeding, it is clear that pursuant to Section 240 of the Domestic Relations Law as well as Section 461(a) of the Family Court Act, Petitioner was free to bring a proceeding for an initial order of child support in either court. It is also clear that if the Supreme Court had entered an order directing the payment of child support, Petitioner ordinarily would be required to allege and prove the existence of changed circumstances subsequent to the entry of that order in any proceeding for modification brought either in that Court or, pursuant to Section 461(b), in Family Court. The implicit thrust of Petitioner’s argument, however, whether addressed to Section 240 alone, or to both that Section and Section 461(a), is that since no order directing that Respondent pay child support was ever made, the Family Court, as well as the Supreme Court, must ignore, for res judicata purposes, the “on the merits” nature of the Supreme Court’s judgment of dismissal. Accordingly, so long as no order requiring Respondent to pay child support has been made, Petitioner claims to be entitled to a de novo hearing in either court, notwithstanding her failure to allege changed circumstances, or some other ground, such as newly discovered evidence, for a de novo hearing.
The cases accordingly make clear that a prior order will not be modified or vacated absent either a showing of material change in circumstances or newly discovered evidence. These rules, in effect, strike a balance between, on the one hand, the interests in finality and judicial economy which underlie the doctrine of res judicata, and, on the other, a recognition of the potentially dynamic nature of the facts and circumstances relating to the issue of support.
Where a dismissal of a support petition is “on the merits” following a full hearing, the same interests in finality clearly are present, and no reason appears for concluding that the rules of res judicata have no role whatsoever to play. Indeed, if, based upon the “plain meaning” of Domestic Relations Law Section 240(1) and Family Court Act Section 461(a), the above-stated rules were held to be inapplicable in cases, such as the present one, in which a petition has been dismissed “on the merits”, the results that follow would be anomalous. Under the rule for which petitioner argues, a disappointed litigant, instead of appealing from the judgment of dismissal, or moving for a rehearing or other relief from the judgment of dismissal, 11 would be free to ignore the prior judgment and simply start a new proceeding. The impropriety of any such attempt to by-pass the appellate process, and to obtain, in effect, a “rehearing” in the Family Court of a cause of action identical to that dismissed by the Supreme Court thus is plain.
On the facts of this case, and after a review of the Special Referee’s report and recommendations, as confirmed by the Supreme Court, it is clear that Petitioner had an opportunity for a full and fair hearing on the issues relative to child support, and that Petitioner deliberately attempted to frustrate the fact-finding process by her refusal to answer questions as to her bank accounts, among other things. It would be completely irrational to conclude that the interests in finality are present only where the first proceeding, resulted in an order requiring payment of at least some child support, and, per contra, that where a judgment dismissing the petition for support on the merits has been entered, there is no limitation on the right to reinstitute a proceeding. Accordingly, insofar as the Petitioner in the instant case is seeking to litigate the identical cause of action as that which was dismissed pursuant to the Supreme Court’s judgment of August 26, 1980, the rules of res judicata operate as a bar to this proceeding.
In view of the fact that (1) the divorce judgment was entered in February, 1979, (2) the petition for modification was filed in Supreme Court in the latter part of 1979, (3) the matter was referred to and heard by the Referee in February and April, 1980, and (4) the Supreme Court’s judgment dismissing the petition was entered in August, 1980, it is clear that Respondent’s alleged failure to pay support from February, 1979 until October, 1980, cannot, as a matter of law, be deemed a material change in circumstances arising subsequent to the Supreme Court proceedings.
Since Petitioner’s previous application for child support was dismissed on the merits by the Supreme Court, and since neither the present petition for child support nor the papers presented to this Court in opposition to the motion to dismiss alleges an intervening material change in circumstances or any other ground for a de novo hearing, the judgment of the Supreme Court operates as a bar to this proceeding. Accordingly, Respondent’s motion to dismiss the petition is hereby granted without prejudice to Petitioner’s right to institute a proceeding for child support when and if she is able, in good faith, to allege either a material change in circumstances, which circumstances, must, of course, also be capable of proof at trial, newly discovered evidence, or some other compelling ground for a de novo hearing.
Accordingly, the court held that, the temporary order of child support is hereby terminated.
If you wish the question the order of child custody, seek the assistance of a Bronx Family Attorney and Bronx Child Custody Attorney at Stephen Bilkis and Associates.