Decisions of Interest

Though NY Would Continue Child Support, CT Law Prevails

In an unreported decision, Supreme Court, Westchester County, dismissed an action seeking continued payment of child support in accordance with New York law, as the child support order was issued by a Connecticut court and the father's discontinuance of payment was in accordance with Connecticut law. E.A. v. R.A., 28 Misc.3d 1239(A), Slip Copy, 2010 WL 3703271 (Table) N.Y.Sup.,2010 (Connolly, J.).

The parties were married in Connecticut in 1985 and were divorced in that state in December 2000, when their only child was 9 years old. Their settlement agreement included a provision that the husband would pay the mother $400 per week in child support. The husband continues to reside in Connecticut, though his ex-wife and child moved to New York and have remained there since prior to the divorce.

When the child reached the age of 18, the husband stopped paying child support, prompting the wife to bring this action in New York's Supreme Court, Westchester County. She sought to compel her ex-husband to continue paying child support until the child reached the age of 21, in accordance with New York law. Under Connecticut law, however, if a child is unmarried, a court may order child support only until the child finishes high school or reaches the age of 18, whichever occurs first. See Conn. Gen.Stat. Ann.
' 46B-215 (a)(1).

The husband moved for dismissal of the action, claiming the court lacked jurisdiction because the matter was res judicata and the Connecticut court's decision was entitled to full faith and credit in New York. The wife opposed, alleging that the Connecticut child support order was invalid and therefore was not entitled to be afforded full faith and credit.

The court here noted that the 2002 Connecticut judgment of divorce included a valid child support order. Supreme Court found itself compelled to dismiss the cause of action.

Stated the court, “Despite New York's strong public policy in assuring that both parents fulfill their support obligations to their children until they reach the age of 21, this Court has no jurisdiction to compel the father to pay support for his child by virtue of the Connecticut support order ' . Since the father has always remained a resident of the state of Connecticut, Connecticut retains continuing, exclusive jurisdiction of its child support order and New York has no subject matter jurisdiction to modify the order.”

Supreme Court erred when it refused to vacate a divorce judgment, as the movant offered a credible reason for her default in the action, and the long duration of the parties' marriage indicated that she should have an opportunity to seek her share of the marital property. Bird v. Bird, — N.Y.S.2d —-, 2010 WL 3818355 (4th Dept. 10/1/10) (Martoche, J.P., Carni, Green, Pine and Gorski, JJ.).

A woman moved to vacate a default divorce judgment, contending that she was not represented by counsel in that action and that her husband had misled her concerning his intention to get a divorce. Supreme Court denied her motion, and this appeal followed.

The Appellate Division, Fourth Department, agreed that Supreme Court abused its discretion in denying the motion to vacate. Noting that New York's courts “have embraced a liberal policy with respect to vacating default judgments in matrimonial actions” (Dunbar v. Dunbar, 233 AD2d 922, 922), the appellate court found that such action was proper here, as the wife's story was meritorious. In addition, the parties had been married for 20 years at the time the divorce was obtained, yet the wife was denied her distributive share of the marital estate. The court, cognizant of the fact that New York public policy favors the disposition of matrimonial actions on the merits, concluded that Supreme Court erred in denying the wife's motion seeking vacatur of the default judgment of divorce.

A man's suit for violation of his Fourteenth Amendment right to fatherhood was dismissed against the Family Court-appointed referee because the referee was protected by judicial immunity from suit. Wilson v. Wilson-Polson, 09 Civ. 9810 (PGG), NYLJ 1202472815684, at *1 (S.D.N.Y., 9/22/10).

After the parties' divorce, the defendant wife was granted sole custody of their daughter. She later brought Family Court proceedings accusing the plaintiff of attempted assault, aggravated harassment, stalking and other offenses. The Family Court appointed a referee and a guardian ad litem for purposes of plaintiff's petition to modify visitation. Following hearings at which plaintiff was deemed not present, the referee entered a protection order requiring plaintiff to stay away from defendant and their daughter. The district court dismissed plaintiff's pro se action under 42 USC ' 1983, asserting that defendant ex-wife, the guardian ad litem and the family court's referee violated his Fourteenth Amendment rights by “depriving him of his Fundamental Right of fatherhood.” Plaintiff's claims against the referee were protected by judicial immunity and she could not be sued in her individual capacity for acts or omissions occurring while executing her judicial duties. Also, quasi-judicial immunity protected the guardian. Plaintiff's ' 1983 claims against his ex-wife were dismissed because plaintiff's allegations were insufficient to show she acted “under color of state law.”

Though NY Would Continue Child Support, CT Law Prevails

In an unreported decision, Supreme Court, Westchester County, dismissed an action seeking continued payment of child support in accordance with New York law, as the child support order was issued by a Connecticut court and the father's discontinuance of payment was in accordance with Connecticut law. E.A. v. R.A. , 28 Misc.3d 1239(A), Slip Copy, 2010 WL 3703271 (Table) N.Y.Sup.,2010 (Connolly, J.).

The parties were married in Connecticut in 1985 and were divorced in that state in December 2000, when their only child was 9 years old. Their settlement agreement included a provision that the husband would pay the mother $400 per week in child support. The husband continues to reside in Connecticut, though his ex-wife and child moved to New York and have remained there since prior to the divorce.

When the child reached the age of 18, the husband stopped paying child support, prompting the wife to bring this action in New York's Supreme Court, Westchester County. She sought to compel her ex-husband to continue paying child support until the child reached the age of 21, in accordance with New York law. Under Connecticut law, however, if a child is unmarried, a court may order child support only until the child finishes high school or reaches the age of 18, whichever occurs first. See Conn. Gen.Stat. Ann.
' 46B-215 (a)(1).

The husband moved for dismissal of the action, claiming the court lacked jurisdiction because the matter was res judicata and the Connecticut court's decision was entitled to full faith and credit in New York. The wife opposed, alleging that the Connecticut child support order was invalid and therefore was not entitled to be afforded full faith and credit.

The court here noted that the 2002 Connecticut judgment of divorce included a valid child support order. Supreme Court found itself compelled to dismiss the cause of action.

Stated the court, “Despite New York's strong public policy in assuring that both parents fulfill their support obligations to their children until they reach the age of 21, this Court has no jurisdiction to compel the father to pay support for his child by virtue of the Connecticut support order ' . Since the father has always remained a resident of the state of Connecticut, Connecticut retains continuing, exclusive jurisdiction of its child support order and New York has no subject matter jurisdiction to modify the order.”

Supreme Court erred when it refused to vacate a divorce judgment, as the movant offered a credible reason for her default in the action, and the long duration of the parties' marriage indicated that she should have an opportunity to seek her share of the marital property. Bird v. Bird, — N.Y.S.2d —-, 2010 WL 3818355 (4th Dept. 10/1/10) (Martoche, J.P., Carni, Green, Pine and Gorski, JJ.).

A woman moved to vacate a default divorce judgment, contending that she was not represented by counsel in that action and that her husband had misled her concerning his intention to get a divorce. Supreme Court denied her motion, and this appeal followed.

The Appellate Division, Fourth Department, agreed that Supreme Court abused its discretion in denying the motion to vacate. Noting that New York's courts “have embraced a liberal policy with respect to vacating default judgments in matrimonial actions” ( Dunbar v. Dunbar , 233 AD2d 922, 922), the appellate court found that such action was proper here, as the wife's story was meritorious. In addition, the parties had been married for 20 years at the time the divorce was obtained, yet the wife was denied her distributive share of the marital estate. The court, cognizant of the fact that New York public policy favors the disposition of matrimonial actions on the merits, concluded that Supreme Court erred in denying the wife's motion seeking vacatur of the default judgment of divorce.

A man's suit for violation of his Fourteenth Amendment right to fatherhood was dismissed against the Family Court-appointed referee because the referee was protected by judicial immunity from suit. Wilson v. Wilson-Polson, 09 Civ. 9810 (PGG), NYLJ 1202472815684, at *1 (S.D.N.Y., 9/22/10).

After the parties' divorce, the defendant wife was granted sole custody of their daughter. She later brought Family Court proceedings accusing the plaintiff of attempted assault, aggravated harassment, stalking and other offenses. The Family Court appointed a referee and a guardian ad litem for purposes of plaintiff's petition to modify visitation. Following hearings at which plaintiff was deemed not present, the referee entered a protection order requiring plaintiff to stay away from defendant and their daughter. The district court dismissed plaintiff's pro se action under 42 USC ' 1983, asserting that defendant ex-wife, the guardian ad litem and the family court's referee violated his Fourteenth Amendment rights by “depriving him of his Fundamental Right of fatherhood.” Plaintiff's claims against the referee were protected by judicial immunity and she could not be sued in her individual capacity for acts or omissions occurring while executing her judicial duties. Also, quasi-judicial immunity protected the guardian. Plaintiff's ' 1983 claims against his ex-wife were dismissed because plaintiff's allegations were insufficient to show she acted “under color of state law.”