Opinion
4007-08.
Decided October 2, 2008.
Thomas J. Jordan, Esq. Attorney for Plaintiff Pine West Plaza Building 4, Suite 409 Albany, New York 12205.
Walter, Thayer Mishler, P.C. Attorneys for Defendant (Anita Thayer, of counsel) 756 Madison Avenue Albany, New York 12208.
This is a motion by plaintiff for post-judgment relief in a matrimonial action. The application seeks payment of college-related expenses on behalf of the parties' daughter, as well as contempt sanctions for defendant's alleged non-compliance with the terms of the parties' Judgment of Divorce. Defendant cross-moves for dismissal on a number of procedural and substantive grounds, including lack of subject matter jurisdiction and constructive emancipation.
Though denominated a "petition" and brought under a separate index number from that of the underlying matrimonial action, the Court will deem this application converted to the proper form ( see CPLR 103[c] and 104).
The parties were married in Maryland in 1987. They later relocated to California, where their daughter was born on March 23, 1990. The parties physically separated in 1992, and plaintiff relocated with the child to New York. Plaintiff commenced a divorce action in New York in 1994. The parties executed a written Stipulation of Settlement. Defendant, still a California resident, consented to entry of final judgment. That Judgment, signed on December 22, 1994, (Canfield, J.), was entered in Albany County on December 29, 1994.
The Stipulation of Settlement provided for child support and related payments, and also contained a provision that the parties would equally share the child's "Expenses for Post-Secondary Education" (Stipulation at § V [3]). The Judgment, while it contains decretal paragraphs setting forth defendant's basic child support obligation, makes no mention of any responsibility for payment of college or post-secondary education expenses. Moreover, the Judgment does not incorporate the parties' Stipulation of Settlement, nor does it decree that the Stipulation would not merge into the Judgment.
In 2003, plaintiff and the child relocated to Connecticut while defendant ultimately moved to Oklahoma. In December 2007, plaintiff sought and obtained an upward modification of the basic child support award in an Oklahoma proceeding. The Order granting this award also decreed "that in all other respects the support order entered on the 22nd day of December 1994 and any subsequent modifications remain in full force and effect."
Meanwhile, defendant's contact with his daughter grew less and less over the years. Face-to-face visits, which had been sporadic, ended entirely. Their correspondence became less frequent and even telephone contact ceased. Plaintiff had the child's surname formally changed from Leong to Bunk, plaintiff's former surname. Finally, on January 4, 2008, the child wrote to her father a brief letter in which she stated, "I am letting you know that I have no interest in visiting or hearing from you . . . Please do not contact me anymore."
As plaintiff began preparing to send the child to college, she wrote to defendant and reminded him of their agreement to share post-secondary expenses. Defendant did not respond. Plaintiff sent copies of bills and receipts for costs related to college preparation (SAT prep fees, cost of books and a calculator, etc.). Defendant refused to pay any portion of these expenses. This litigation followed. Plaintiff seeks various enforcement remedies, including contempt.
The first issue to address is that of subject matter jurisdiction. As noted, plaintiff no longer resides in New York; the child does not reside in New York; and defendant has never resided in New York. The only connection with New York is that it is the State from which the original child support order issued in the form of the Judgment of Divorce.
The controlling statute here is the Uniform Interstate Family Support Act ("UIFSA"), first enacted in New York in 1997 (L 1997 ch 398, effective 12/31/97). The enactment of UIFSA constituted "a sea change over prior law" (Sobie, Practice Commentary, McKinney's Cons Laws of NY, Book 29A at p 225 [1999]). This new statutory scheme, adopted nationwide, was intended to streamline the interstate enforcement of child support and spousal support orders.
The cornerstone of UIFSA is the concept of "continuing, exclusive jurisdiction" over a support order. The state issuing a child support order retains continuing, exclusive jurisdiction "as long as this state remains the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued" (FCA § 580-205 [a] [1]). The concept of continuing, exclusive jurisdiction was created in order to end the practice, common before UIFSA, of out-of-state payors seeking downward modifications of their child support obligations in the states of their current residence ( cf. Sobie, Practice Commentary, supra, at p 205). As long as either party or the subject child remains a resident of the issuing state, that state retains continuing, exclusive jurisdiction over modification of the original child support order.
In the present case, since the Judgment of Divorce contained a child support order, New York had continuing, exclusive jurisdiction over that order. This ended upon plaintiff's relocation with the child to Connecticut, as defendant had never been a New York resident. With neither the child nor either party residing in New York, the statutory nexus with this State was thus severed.
Once plaintiff received her upward modification of child support from Oklahoma, a separate provision of UIFSA came into play. When a sister state has modified a child support order in accordance with UIFSA, the original issuing state loses any jurisdiction it might otherwise have enjoyed to modify the order (FCA § 580-205 [b]). Moreover, the original issuing state also loses jurisdiction over "prospective enforcement" of its prior order (FCA § 580-205 [c]). In effect, then, the state modifying the original child support order becomes the "new" issuing state with continuing, exclusive jurisdiction. Here, due both to the parties' relocations and the issuance of the Oklahoma modification order, New York has lost continuing, exclusive jurisdiction for purposes of modification and also for purposes of prospective enforcement.
Plaintiff correctly points out, however, that UIFSA contains an exception to this limitation on prospective enforcement. FCA § 580-205 (c) (2) allows the original issuing state to retain jurisdiction to "enforce nonmodifiable aspects of [the] order." Plaintiff contends that since the Oklahoma modification order did not address any aspects of child support regarding post-secondary expenses, these may still be enforced in New York. This position, however, is based upon a false premise.
The term "nonmodifiable" is undefined in UIFSA. Plaintiff equates the word with "not modified," while its apparent meaning is more likely "not able to be modified." As will be seen, however, in this case the distinction is irrelevant.
Plaintiff's counsel states that "the child support arrangements in paragraph V of the Marital Settlement Agreement are fully incorporated into the Judgment of Divorce" (Petition ¶ 5). While the Findings of Fact dated December 22, 1994 do make such a recitation, which is in accord with the terms of the parties' Stipulation, (at para XIII), the Judgment itself neither incorporates the Stipulation of Settlement nor, more importantly, does the Judgment decree that the Stipulation shall not merge into the Judgment.
In the absence of specific language in the Judgment that both incorporates the Stipulation and decrees that it shall not merge, the "Marital Settlement Agreement" is neither a part of the final Judgment nor does it exist as an independently enforceable contract ( see Vest v Vest , 50 AD3d 776 , 777 [2d Dept 2008] and cases cited therein). Where the language of the judgment conflicts with that of the stipulation regarding whether there is to be merger, it is the language of the judgment that will control, despite the parties' prior agreement to the contrary ( Rainbow v Swisher, 72 NY2d 106). Where, as here, a judgment has been in force for years without appeal or collateral attack, such a discrepancy between the judgment and the underlying stipulation will not support a subsequent reformation of the judgment ( id. at 110). Thus, the only document which remains to be analyzed as a potentially enforceable order is the Judgment itself.The Judgment has specific decretal language regarding, inter alia, defendant's direct obligation for basic child support. The Judgment says nothing whatsoever with regard to post-secondary educational expenses. At present, then, defendant is subject to no order obligating him to defray any of his daughter's college-related expenses.
This is not to say, however, that such an obligation cannot be imposed by a court of competent jurisdiction. The courts of this State routinely order, where circumstances are appropriate, the payment of college expenses even where the original divorce judgment contained no such provision ( see e.g. Montagnino v Montagnino, 163 AD2d 598 [2d Dept 1990]; see generally DRL § 240). Such orders also regularly include offsets or credits against basic child support for the payment of duplicative expenses such as room and board ( see Wortman v Wortman , 11 AD3d 604 [2d Dept 2004]).
In the present case, inasmuch as the Judgment contains no provision for the payment of college expenses, plaintiff can only obtain relief through a modification proceeding. As noted earlier, however, UIFSA has stripped this Court of jurisdiction to modify the child support order due to issuance of the subsequent Oklahoma modification order following all parties' relocations (FCA § 580-205 [c]). At this point Oklahoma, not New York, has continuing exclusive jurisdiction to modify the child support order.
The Court need not address the question of the effect of the provision of the parties' Stipulation of Settlement that purports to consent to the jurisdiction of New York courts "to make whatever orders may be necessary or desirable to . . . determine issues with regard to the . . . support and welfare of the child" (Stipulation of Settlement at para X). This provision was also not incorporated into the Judgment, nor was it decreed that it would not merge. As a result, this additional term of the parties' agreement has merged into the Judgment and is no longer independently enforceable ( see Vest v Vest, supra). The Judgment itself contains no decretal language reserving jurisdiction to New York; therefore, this Court need not resolve the issue of whether the parties could "confer" jurisdiction where it was otherwise lacking ( cf. FCA § 580-205 [a] [2] [parties may file written consent to jurisdiction of another state]).
In his 2000 addendum to McKinney's Practice Commentary, Professor Sobie notes, "An interesting, albeit yet undecided question, is whether the parties can agree to continuing jurisdiction in New York via a provision incorporated in stipulated New York divorce judgment. The language of 580-205 does not address that contingency, and there is as of yet no definitive caselaw." For the present, this question shall remain undecided.
In light of the foregoing determination, this Court need not opine concerning the viability of defendant's claim that the child is "constructively emancipated" due to her having expressly chosen to cut off all contact with her father.
Accordingly, it is
ORDERED that plaintiff's application for post-judgment enforcement relief is denied in all respects; and it is further
ORDERED that defendant's cross-motion to dismiss is granted.
This constitutes the Decision and Order of the Court. All papers including this Decision and Order are returned to defendant's counsel. The signing of this Decision and Order shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and Notice of Entry.