Opinion
F-02376-16/19C
07-22-2019
In the Matter of a Proceeding for Support Under Article 5-B of the Family Court Act NICHOLAS A., Petitioner, v. JESSICA T., Respondent.
Nicholas A., petitioner pro se Jessica T., respondent pro se
Nicholas A., petitioner pro se
Jessica T., respondent pro se
Mary M. Tarantelli, J.
The petitioner objects in a proceeding pursuant to Family Ct. Act article 5-B from an order of Support Magistrate Timothy K. Mattison, entered July 3, 2019, which, without a hearing, summarily dismissed petitioner's application to terminate his support obligation.
The parties are the divorced parents of a daughter (born in 2011). By order, dated June 29, 2012, entered in Germany, petitioner was obligated to pay child support in the amount of 241 euros per month, subject to automatic adjustment. At the time of their divorce, the parties both resided in Germany, where respondent, a German citizen, continues to reside. However, subsequent to their divorce, petitioner, an American citizen, returned to the United States. In June 2016, the order was registered in this court for enforcement pursuant to the Uniform Interstate Family Support Act (Family Ct. Act article 5-B) with alleged arrears of $5,871.94. The petitioner contested the validity of the registered order in a timely manner, claiming the amount of arrears was miscalculated. Indeed, at the initial appearance on his application, petitioner's counsel stated that he was only objecting to the amount of arrears. However, petitioner subsequently filed an "answer" asserting parental alienation as a further defense and the proceeding was transferred by the support magistrate to another judge of this court (Hayden, J.). The German central authority, see Family Ct. Act § 580-701(5), thereafter submitted a memorandum in effect seeking dismissal of the defense on the ground that "visitation issues cannot be raised in child support proceedings, Section 305(d) [of the] UIFSA," codified at Family Ct. Act § 580-305(d), arguing that petitioner should be referred to the appropriate "German court where he may address his visitation issues."
Following reassignment to another judge upon the first judge reaching mandatory retirement age, respondent moved to dismiss the defense of parental alienation and for an order limiting the scope of the hearing to the amount of arrears on the grounds that "this Court lacks jurisdiction to modify the foreign decree pursuant to FCA section 580-611" and that "the defense of visitation frustration ... is not allowed to lessen and/or cancel arrears." Affirmation of respondent's counsel at 2, citing Doyle v. Doyle , 198 A.D.2d 256, 603 N.Y.S.2d 525 (2d Dept. 1993) ; DRL 241. Petitioner opposed the motion asserting, as relevant here, that he "is allowed to contest registration of the ongoing support obligation by any defense allowed by New York [l]aw" and that, "[u]nder New York law, alienation is a defense to ongoing support collection." Aff of petitioner's counsel at 3-4, citing Family Ct. Act § 580-607(a)(5). Further, petitioner asserted that, since respondent has requested court-appointed counsel and "consented and agreed to physically be present" in New York State for the hearing in the registration proceeding, she had submitted to the jurisdiction of this court for the purpose of modifying the prior order of support. Id. at 5-8, citing Family Ct. Act § 580-711(a). In August 2017, another judge of this court (Baker, J.) denied the motion concluding that Family Ct. Act § 580-607(a)(5) "permits [a] party to raise a defense under the law of this [S]tate and alienation constitutes such a defense."
In December 2017, petitioner's counsel "requested [and this court granted] an adjournment of [the prior] matters so that he may contact a German attorney who may be able to represent his client on a visitation petition" after which the parties "may ... be able to reach a settlement" (Baker, J). The parties failed to reach a settlement and ultimately agreed to submit their arguments regarding the amount of arrears on papers and waived an evidentiary hearing. See Matter of Root v. Root , 161 A.D.3d 1169, 1171, 77 N.Y.S.3d 483 (2d Dept. 2018). In September 2018, the court entered an order (Baker, J.) establishing arrears in the amount of $3,614.40 and directed "petitioner's counsel [to] notify the ... Court ... within ten (10) days ... as to whether a hearing date is necessary with respect to the issue of alienation." When petitioner failed to request a hearing on alienation within the time allotted, the court, in a subsequent "Final" order (Baker, J.), dated October 4, 2018, dismissed petitioner's alienation defense as abandoned and confirmed the German order with arrears established as set forth in the September 2018 order.
On October 9, 2018, petitioner's counsel advised the court that petitioner had terminated his representation two weeks prior and had directed counsel "not to contact the court or do any further work on his behalf." Petitioner's counsel indicated that petitioner "may choose to proceed with his alienation claim pro se. " By letter two days later, petitioner's counsel advised that petitioner and counsel had "resolved [their] differences" and sought to "formally withdraw [the] claim for alienation." The same day, petitioner through counsel filed a notice of appeal from the September 2018 order establishing arrears pursuant to the German order.
In June 2019, petitioner commenced the instant proceeding seeking to suspend his obligations under the registered order on the ground of parental alienation. Specifically, petitioner alleges that he is "seeking termination [of his support obligation] due to parental alienation ... [noting that the prior proceeding had been] previously scheduled for trial [and,] after nearly 3 years of waiting[,] ... [his] ex-attorney ... abandoned [the] case." The support magistrate dismissed the petition without a hearing on the ground that the German order is registered solely for the purpose of enforcement and that the court lacks modification jurisdiction. The petitioner objects adopting his arguments in the prior proceeding in opposition to the respondent's motion to dismiss the defense of parental alienation.
"In 2015, New York adopted, as Family Court Act article 5-B, a new version of the Uniform Interstate Family Support Act (hereinafter the UIFSA), that, among other things, incorporates the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (hereinafter the Convention), of which [Germany] is a member." Matter of Ardell v. Ardell , 140 A.D.3d 863, 864, 34 N.Y.S.3d 106 (2d Dept. 2016), citing L 2015, ch 347, § 2. " Family Court Act § 580-615 allows tribunals of this [S]tate to modify foreign child support orders in certain circumstances, ‘[e]xcept as otherwise provided in [ Family Court Act §] 580-711.’ Family Court Act § 580-711(a) provides:
Status Table , Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance, available at https://www.hcch.net/en/instruments/conventions/status-table/?cid=131 (last accessed July 19, 2019).
A tribunal of this [S]tate may not modify a Convention child support order if the obligee remains a resident of the foreign country where the support order was issued unless:
(1) the obligee submits to the jurisdiction of a tribunal of this [S]tate, either expressly or by defending on the merits of the case without objecting to the jurisdiction at the first available opportunity; or
(2) the foreign tribunal lacks or refuses to exercise jurisdiction to modify its support order or issue a new support order.
Any child support order issued after a prior child support order has been issued constitutes a ‘modification’ of the prior child support order within the meaning of the UIFSA." Id. at 865, 34 N.Y.S.3d 106, citing Matter of Spencer v. Spencer , 10 N.Y.3d 60, 67-68, 853 N.Y.S.2d 274, 882 N.E.2d 886 (2008).
A review of the record of the prior proceeding reveals that the respondent "did not expressly submit to the jurisdiction of the courts of this [S]tate, and that [s]he objected to the [court's] jurisdiction [to suspend (i.e., modify) petitioner's support obligation] at the first available opportunity." Id. Clearly, respondent cannot be said to have submitted to the court's jurisdiction for modification purposes by defending against petitioner's contest to registration of the foreign order for enforcement purposes. To conclude otherwise would render the protections of Family Ct. Act § 580-711 meaningless whenever a support obligor raises and the court accepts defenses to enforcement registration. Moreover, the Convention clearly provides that this court's authority in such circumstances is limited to the "refus[al] to recogni[ze] and enforce[ ] ... a registered Convention support order." Family Ct. Act § 580-708(b) ; see Family Ct. Act § 580-305 (setting forth duties and powers of the court that did not issue the controlling order); 580-314 (explaining that "[p]articipation ... in a proceeding under [Family Ct. Act article 5-B] ... does not confer personal jurisdiction over the [participant] in another proceeding"); Uniform Interstate Family Support Act (2008) § 104 Comment at 20, available at https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=e12481bd-ac36-07ba-7d64-7841e9db5e09 & forceDialog=0 (last accessed July 19, 2019) (noting that Section 104 of UIFSA "makes clear that jurisdiction to establish child custody and visitation orders is distinct from jurisdiction for child-support orders"). Further, petitioner does not allege and "the record [in the prior proceeding] does not demonstrate that the courts of [Germany] lack or have refused to exercise jurisdiction to modify the [German] support order or issue a new support order. Accordingly, the courts of this state do not have jurisdiction to issue a new support order unless there is a reason not to recognize the [German] support order." Ardell , 140 A.D.3d at 865, 34 N.Y.S.3d 106, citing Family Ct. Act § 580-708(c) ; 580-711(b).
" Family Court Act § 580-708 provides that tribunals of this [S]tate shall recognize registered support orders issued by tribunals located in members of the Convention except under certain specified circumstances, including where recognition of the order is manifestly incompatible with public policy, including the failure of the issuing tribunal to observe minimum standards of due process, which include notice and an opportunity to be heard. Here, ... [petitioner] has failed to demonstrate that recognition of the [German] support order is manifestly incompatible with public policy." Id. , citing Family Ct. Act § 580-708(b)(1).
Petitioner's reliance on Family Ct. Act § 580-607(a) is misplaced. First, as petitioner correctly argued in the prior proceeding, since Germany is a member of the Convention, part 7 of Family Ct. Act article 5-B applies rather than part 6, which applies to foreign support orders issued by tribunals in non-Convention countries. While the registration and enforcement of support orders from Convention and non-Convention countries alike may be challenged on the basis of miscalculated arrears, compare Family Ct. Act § 580-607(a)(6), with id. § 580-708(b)(8), with respect to Convention support orders, there is no catch-all provision permitting obligors to assert an unenumerated defense under the laws of this State. In any event, while parental alienation may be a defense under State law, see id. § 580-607(a)(5), that defense is specifically not available in the context of a UIFSA proceeding. Id. § 580-305(d) ; see Uniform Interstate Family Support Act (2008) § 305 Comment at 46 (recognizing that "a foreign support order may not be conditioned on compliance with a visitation order"); id. 314 Comment at 55 (explaining that Family Ct. Act § 580-314 is intended "to preclude joining disputes over child custody and visitation with the establishment, enforcement, or modification of child support" and that "issues ... such as custody and visitation ... have no place in a UIFSA proceeding").
Furthermore, contrary to petitioner's apparent contention, the determination by another judge of this court in the prior proceeding that parental alienation is a viable defense in UIFSA proceedings is not binding as the law of the case. "Law of the case is a judicially crafted policy that expresses the practice of courts generally to refuse to reopen what has been decided, and is not a limit to their power. As such, law of the case is necessarily amorphous in that it directs a court's discretion, but does not restrict its authority. Law of the case does not apply to every judge or every ruling." People v. Cummings , 31 N.Y.3d 204, 208, 75 N.Y.S.3d 484, 99 N.E.3d 877 (2018) (internal quotation marks and citations omitted); see State of NY Higher Educ. Services Corp. v. Starr , 158 A.D.2d 771, 772, 551 N.Y.S.2d 363 (3d Dept. 1990) (the doctrine of law of the case "appl[ies] exclusively to questions of law ... [and] makes a legal determination in a given case binding not only on the parties, but on all other Judges of coordinate jurisdiction"). Thus, "the doctrine of law of the case ... may be ignored in extraordinary circumstances ... [where] [t]he error sought to be corrected ... [is] so plain that it would require the court to grant a reargument of a cause." Welch Foods, Inc. v. Wilson , 262 A.D.2d 949, 950, 692 N.Y.S.2d 873 (4th Dept. 1999) (internal quotation marks and citation omitted). This is such a case.
Family Ct. Act § 580-607(a)(5) cannot be viewed in a vacuum. The court must construe the UIFSA as a whole and harmonize and give effect to all its parts while considering its general purpose and spirit. Matter of Talisman Energy USA, Inc. v. New York State Dept. of Envtl. Conservation , 113 A.D.3d 902, 905, 979 N.Y.S.2d 167 (3d Dept. 2014), quoting Matter of Kittredge v. Planning Bd. of Town of Liberty , 57 A.D.3d 1336, 1339, 870 N.Y.S.2d 582 (3d Dept. 2008). In construing the Act with these principles in mind, it is clear that the general provision authorizing defenses recognized under state law must yield to the specific provisions limiting consideration of visitation issues and the overall statutory scheme. See e.g. Matter of Lamar Adv. of Penn, LLC v. Pitman , 9 A.D.3d 734, 735, 780 N.Y.S.2d 233 (3d Dept. 2004), citing NY Statutes § 238. In addition to misapprehending the scope of state law defenses under the UIFSA, the court also previously overlooked the fact that petitioner himself argued against application of part 6 of Family Ct. Act article 5-B and argued that the prior proceeding was governed by part 7 concerning support orders issued by members of the Convention. Under these circumstances, the court would be required to grant reargument. The law of the case doctrine should therefore be ignored particularly since there has been no showing of detrimental reliance by petitioner on the prior ruling. See Cummings , 31 N.Y.3d at 208, 75 N.Y.S.3d 484, 99 N.E.3d 877.
Further, petitioner had a full and fair opportunity to litigate the issue of alienation in the prior proceeding and specifically withdrew his defense. " ‘Res judicata ... bar[s] litigation of a claim that was either raised, or could have been raised, in a prior proceeding provided that the party to be barred had a full and fair opportunity to litigate any cause of action arising out of the same transaction and the prior disposition was a final judgment on the merits.’ " Matter of Feldman v. Planning Bd. of Town of Rochester , 99 A.D.3d 1161, 1162-1163, 952 N.Y.S.2d 824 (3d Dept. 2012), quoting Kinsman v. Turetsky , 21 A.D.3d 1246, 1246, 804 N.Y.S.2d 430 (3d Dept. 2005), lv denied 6 N.Y.3d 702, 810 N.Y.S.2d 416, 843 N.E.2d 1156 (2005).
Finally, to the extent that petitioner is now claiming that his counsel acted without authority in withdrawing the defense, the court observes that counsel's withdrawal of the defense was academic inasmuch as the order had already been entered. Alternatively, to the extent petitioner is claiming his counsel failed to timely request a hearing on the lack of visitation defense after the court had provisionally established the amount of arrears, the vague, conclusory and unsubstantiated allegations of attorney neglect are insufficient to warrant reconsideration of the court's order. Compare Ki Tae Kim v. Bishop , 156 A.D.3d 776, 777, 67 N.Y.S.3d 655 (2d Dept. 2017) ; Servilus v. Walcott , 148 A.D.3d 743, 744, 48 N.Y.S.3d 494 (2d Dept. 2017) ; Wells Fargo Bank, N.A. v. Cervini , 84 A.D.3d 789, 789, 921 N.Y.S.2d 643 (2d Dept. 2011), with Aurora Loan Services, LLC v. Ahmed , 122 A.D.3d 557, 557-558, 996 N.Y.S.2d 92 (2d Dept. 2014) ; Pagan v. Estate of Anglero , 22 A.D.3d 285, 287, 802 N.Y.S.2d 47 (1st Dept. 2005) ; Russo v. Russo , 289 A.D.2d 467, 468, 735 N.Y.S.2d 594 (2d Dept. 2001). In any event, as previously discussed, petitioner does not have a meritorious defense, as required for reconsideration. See New York State Labor Relations Bd. v. Paragon Oil Co. , 45 N.Y.S.2d 152, 157 (Sup. Ct., Kings County 1943), citing Brownsville Lbr. Co. v. Weiner , 225 A.D. 874, 232 N.Y.S. 643 (2d Dept. 1929) ; Clews v. Peper , 112 A.D. 430, 98 N.Y.S. 404 (1st Dept. 1906).
ORDERED that the petitioner's objections to the Order (Mattison, S.M.), entered July 3, 2019, are denied, and the Order is affirmed.
ORDERED that a copy of this order be provided promptly by the Chemung County Support Collection Unit to the New York State Registry of Child Support Orders established pursuant to Section 111-b(4-a) of the Social Services Law.
PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT OR 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, WHICHEVER IS EARLIEST.