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).
In January 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. While the action was pending, the parties executed a separation agreement on April 16, 1973. The agreement provided, Inter alia, for semimonthly payments to the plaintiff for alimony and child support. Thereafter on August 16, 1973, 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.
From the papers it appears that the 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 alleges that she is a housewife with part-time employment as a teacher in Stamford, Connecticut where her gross annual pay is $3,000.
The initial task of this court is to 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 will therefore first consider these two questions: 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 deal with the multiple relief requested by the plaintiff and the objections raised thereto by the defendant.
1. Article 54 applies to ‘foreign judgments’ as defined in CPLR 5401. With three exceptions, as hereafter discussed, the term foreign judgment refers to ‘Any judgment, decree or order’ of a sister state 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 for this court 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 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.
2. (a) There being no question as to the applicability of the second and third exceptions above to plaintiff’s Connecticut divorce judgment, the court will focus on whether the alimony and support arrears resulting therefrom are entitled to enforcement in this state under the full faith and credit clause. The law is well settled 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. But 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 these principles apply in the State of Connecticut? The court is empowered by the provisions of CPLR 4511 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. The defendant relies on Connecticut General Statutes Annotated (C.G.S.A.), section 46–54 and on Connecticut Practice Book Annotated, Superior Court Rules, section 381 in support of its position that alimony awards are subject to modification in Connecticut.
While there is some question as to whether this provision is even applicable here in view of the section’s effective date being subsequent to the date of the divorce decree, nevertheless the court concludes that this statute as well as its predecessor 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 statutes being of no assistance, the court must turn to Connecticut case law. The plaintiff cites but one Connecticut decision–and research has failed to reveal any others–DeGolyer v. DeGolyer which held at page 342 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 erroneous as to arrears, this court, in the absence of any authority to the contrary, 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.
Consequently, the court holds that the 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 court finds that the Connecticut divorce decree meets the definition of a ‘foreign judgment’ entitled to be filed in this 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 this court (CPLR 5402(b)).
(b) The court is unable to reach the same conclusion with respect to the Connecticut contempt judgment. Defendant claims that this judgment cannot be registered pursuant to article 54 as it was obtained by defendant’s ‘default in appearance.
Although 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 import if in fact the defendant did not ‘appear.’
Thus, 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.
3. Having concluded that the Connecticut divorce judgment was properly filed under article 54, the court will new examine the relief requested by the plaintiff.
A. Section 244 of the Domestic Relations Law provides that 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 November 1, 1975 through January 16, 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 and not an independent action as suggested by the defendant. Since the Connecticut divorce judgment is now to be regarded as a domestic judgment, plaintiff has 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.
B. Plaintiff also seeks entry of judgment as to arrears in the sum of $3,493 covering the period July 16, 1975 through October 16, 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 this 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. Should the omission from the affidavit of the $3,493 in arrears be fatal on this motion to plaintiff’s request for relief as to same?
Under the circumstances of this case, the court thinks not. The court sees no need of subjecting the parties or the court to the burden and expense of a second proceeding at this time whereunder 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, the court finds that there has been substantial compliance with article 54 as regards the arrears of $3,493. 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, in the court’s opinion, by virtue of the notice otherwise given to the difendant as to these arrears. Accordingly, the court directs entry of judgment as to an additional $3,493 in arrears, but denies the relief as to the $350 counsel fees which award was not granted in the divorce judgment.
C. 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. The court observes, however, that 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.
Wage deduction pursuant to Personal Property Law, Section 49–b and posting of security pursuant to DRL Section 243 are two such enforcement devices. Both remedies are, however, discretionary with the court, whether being imposed as to arrears or as to future payments.
In view 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 now 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 in this motion, including counsel fees awarded in the Connecticut contempt judgment and which may be awarded on this motion, within sixty (60) days after service of a copy of the order to be settled herein. In the event the defendant fails to honor either or both of these conditions, the plaintiff is granted leave to renew her motion for a wage deduction and the posting of security.
D. For like 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.
None of the constitutional infirmities denying the debtor-husband his due process rights in Darbonne were present in Walker. Quoting from the last paragraph in Walker: Here, the appellant received all of the due process rights which were denied to the plaintiff in Vail. He had been previously imprisoned for violation of the alimony judgment, he was served with proper process bringing on this proceeding and he was represented by counsel who appeared and argued on his behalf. Thus, all of the alleged infirmities in the statutes held unconstitutional in Vail are not here applicable. The court there was dealing with a defaulting, impecunious debtor who did not appear at the statutorily guaranteed hearing, who was without any knowledge of the possible consequences to him and who had no counsel. The facts here are the opposite.’
By way of contrast, the debtor-husband in Darbonne was not represented by counsel and defaulted in appearing in the contempt action so the court was unable to determine from the order to show cause whether he had been previously imprisoned for violation of a prior court order and divorce judgment, or whether he had been served with proper process, or whether he had adequate notice that the proceeding might result in possible imprisonment, or whether he had adequate notice that he could perhaps avoid incarceration by asserting, pursuant to DRL section 246, his financial inability to pay as a defense. Thus in Darbonn, as in many of the contempt proceedings which have come before me, the court was dealing with a defaulting, possibly impecunious debtor who did not appear at the statutorily guaranteed hearing, who was without any knowledge of the possible consequences to him and who had no counsel.
The clear implication of Walker is that a debtor-husband in a Darbonne type of situation would be denied his due process rights in a contempt proceeding pursuant to DRL section 245. Consequently, while this court will no longer regard DRL section 245 as constitutionally invalid, it will, nevertheless, refuse to grant a motion for contempt pursuant thereto where the due process rights of the debtor-husband are found wanting. There must be full compliance with the requirements discussed in Walker and set out in Darbonne and reiterated above.
As an aid to the bar in meeting these requirements, it may be wise to conspicuously include the following statements on the face of the order to show cause to punish the husband for contempt for non-payment of alimony, support, maintenance or counsel fees.
To avoid the possibility that the defendant may evade or delay the consequences of a motion to punish for contempt by his non-appearance, it may also be wise for the petitioner to serve the defendant with a subpoena simultaneously with the order to show cause.
E. The last branch of plaintiff’s relief concerns a request for counsel fees in connection with the instant application. Defendant argues that this proceeding is not one of the enumerated instances in DRL section 237 in which counsel fees may be awarded. The court disagrees.
Section 237(b) specifically provides that 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 provides 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. The Appellate Division, Second Department, cited this section as supporting an award of counsel fees in a proceeding by a wife to enter judgment for alimony arrears which is precisely the case here.
Accordingly, the court grants the plaintiff reasonable counsel fees in the sum of $850.In view of the above disposition of plaintiff’s various claims for relief, the defendant’s cross-motion for dismissal of this proceeding for lack of jurisdiction over the subject matter is denied. This proceeding is properly before the court pursuant to article 54 of the CPLR.
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