Matter of Elizabeth C. v Richard L. C.
Annotate this CaseDecided on April 15, 2009
Family Court, Erie County
In the Matter of a Support Proceeding Elizabeth C., Petitioner,
against
Richard L. C., Respondent.
F-3614-08
Rosalie Bailey, J.
Respondent, Mr. C., objects to the order of the Support Magistrate, entered December 17, 2008, which directed him to pay child support. He also objects to the Support Magistrate's order of June 6, 2008 (and amended by order of June 11, 2008), which denied his motion to dismiss the petition.
The facts of this matter are not in dispute. The parties were married in May, 2000, in the State of Michigan. They have one child, born in 2002. They moved to the State of Maryland, where they resided until they separated in September, 2006. At that time, they entered into a Marital Settlement Agreement which provided that Mr. C. would pay support at the rate of $400.00 per month. Mr. C. moved to the State of Delaware and Ms. C. moved with the child, as the parties had agreed she could, to the State of New York. Mr. C. later also moved to New York, where he lived from February or March, 2007, to October, 2007, although he alleges that he maintained his Delaware residence during that time.
In October, 2007, Mr. C. obtained a judgment of divorce in the State of Delaware. It did not incorporate the parties' agreement and, in fact, did not refer to that agreement in any way. No order of child support was issued.
The current proceeding was instituted by Ms. C. in February, 2008, when she filed her petition seeking an award of child support. Mr. C. filed two motions seeking to dismiss the petition, arguing that Family Court lacked jurisdiction, as well as an Article 78 petition in Supreme Court asking that Family Court be prohibited from proceeding with the case. All of those applications by Mr. C. were denied, as was his objection to the order of the Support Magistrate denying his motion. In the meantime, in October, 2008, Mr. C. obtained, on an ex parte basis, the signature of a Delaware judge on the Marital Separation Agreement, in an attempt to convert the agreement into an order. The Delaware court later vacated its "order," specifically noting "the very unusual circumstances that surrounded the presentation of this Order for the Court's signature. . ."
Mr. C. argues that New York State lacks jurisdiction over him because he lacks sufficient contacts with this state to render the exercise of jurisdiction constitutional. Jurisdiction over [*2]non-residents in actions for support is provided by CPLR 302(b), which provides, in pertinent part, that "[t]he family court may exercise personal jurisdiction over a non-resident respondent to the extent provided in sections one hundred fifty-four. . . and article five-B of the family court act. . ."
Article 5-B, the Uniform Interstate Family Support Act, provides in section 580-201 several bases for the exercise of jurisdiction over a non-resident. Family Court may exercise jurisdiction over a non-resident, such as Mr. C., if he "resided in this state and provided. . . support for the child."
It was stipulated by the parties that Mr. C. has been paying child support to Ms. C. in New York State, including during the time that he resided in this state. I note that "residence" is different from "domicile" for jurisdictional purposes. As noted by the Appellate Division, First Department, in Gletzer v. Harris, 51 AD3d 196, 854 NYS2d 10 (2008), in different circumstances, "a person may establish a residence in another place while maintaining his former domicile." Here, Mr. C. purchased a home in New York State and resided in that home for several months, during which time he paid child support. The fact that he may also have maintained a domicile in another state during that time is irrelevant to Section 580-201.
This fact is sufficient to establish long-arm jurisdiction in New York. See, Samuels v. Britton, 243 AD2d 570, 662 NYS2d 603 (2nd Dept. 1997) (non-resident father held to be within New York jurisdiction based upon payment of support to child residing in New York, under former version of Family Court Act section 154(b) containing language similar to current section 580-201.)
Mr. C. next argues that Family Court lacks subject matter jurisdiction allowing it to modify the parties' Marital Settlement Agreement. Citing the United States Constitution and Klelia v. Klelia, 50 NY2d 277, 428 NYS2d 896 (1980), he argues that the application of section 461 of the Family Court Act violates his "liberty to contract."
Section 461(a) provides that
A separation agreement, a decree of separation, and a final decree or judgment terminating a marriage relationship does not eliminate or diminish either parent's duty to support a child of the marriage under section four hundred thirteen of this article. In the absence of an order of the supreme court or of another court of competent jurisdiction requiring support of the child, the family court may entertain a petition and make an order for its support.
This statutory duty to support a child is entirely separate from any support obligation contained in an agreement between the parents, as the child is not a party to that agreement and has an independent right to support. Raepple v. Paonessa, 283 AD2d 914, 723 NYS2d 780 (4th Dept. 2001) establishes conclusively that Family Court does have jurisdiction to issue an order of child support, despite the parties' prior agreement, where no order of support has been previously issued. The facts there are directly on point. This leaves open the question, however, of whether this particular case is one in which such an award should be made.
"Courts will not allow a spouse, by agreement, to evade this statutory obligation where the child's needs would otherwise not be met. However, courts allow spouses to limit one spouse's child support obligation where such agreement adequately protects the child." Lounsbury v. Lounsbury, 300 AD2d 812, 752 NYS2d 103 (3rd Dept. 2000) (Citations omitted).
It is not unusual to have parties agree on a support obligation prior to their divorce. What is unusual in this case, however, is that the parties' agreement was not incorporated into their judgment of divorce. Thus, it never acquired the status of an order of the court. The Support [*3]Magistrate, therefore, gave no consideration to the agreement and awarded support as though the agreement did not exist.
I must rule that this was incorrect. An agreement between the parties is enforceable, even though it has not been incorporated into a judgment. For example, in Bodzak v. Bodzak, 48 AD3d 724, 853 NYS2d 166 (2nd Dept. 2008), the court determined several child support issues based upon the language of a separation agreement, even though the divorce was still pending and no judgment had been entered. In both Janssen v. Janssen, 155 AD2d 332, 547 NYS2d 595 (1st Dept. 1989); and Roschko v. Roschko, 130 Misc 2d 827, 497 NYS2d 814 (Sup.Ct. NY Cnty. 1985), courts refused to award relief on post-divorce motions brought under the Domestic Relations Law, but specifically noted that separation agreements which had not been incorporated into the divorce judgments were enforceable by plenary action.
It has been correctly noted by Mr. C. that Family Court does not have jurisdiction to modify the parties' agreement. As stated above, however, the Support Magistrate did have jurisdiction to award support in circumstances where the child's needs are not being met, despite the existence of an agreement. Reviewing the petition here, however, it is clear that Ms. C. failed to allege, and the Support Magistrate did not find, that the child's needs were not being met. Absent that allegation, this petition does not fall within the power granted by section 461 of the Family Court Act to issue an order of support. The case of Clune v. Clune, 57 AD2d 256, 394 NYS2d 556 (3rd Dept. 1977) is directly on point. There, the Appellate Division ruled that where the petition was not an application for child support on the ground that the ex-husband had not fulfilled his duty to support the children, and the agreement was not incorporated into the judgment of divorce, Family Court had no power to award support.
The issue of whether or not the needs of the child were being met was never raised and never resolved below. Thus, the petition should have been dismissed. Because this is a pleading defect, and no finding of fact was made on the issue, the dismissal shall be without prejudice to filing of a petition alleging sufficient facts.
It is, therefore,
ORDERED, that the objection is granted; and it is further
ORDERED, that the petition is dismissed, without prejudice.
This constitutes the decision and order of this Court. Submission of an order by the parties is
not necessary.
Dated:April 15, 2009
Buffalo, New York
____________________________________
Rosalie S. Bailey
Family Court Judge
[*4]
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