Child-Support Judgments Beyond U.S. Borders

Options in New York

If your child support judgment is from a country that is not on the list of those that have agreed to register and enforce foreign awards under the Hague treaty, there are two options in New York. First, try to register the foreign judgment with the New York Family Court. A New York court has the power to register a foreign child support judgment under UIFSA from a country not officially recognized as reciprocal if the country meets the definition of a “State” under the FCA. The latter defines a “State” as “a foreign jurisdiction that has enacted a law or established procedures for issuance and enforcement of support orders which are substantially similar to procedures under this article, the Uniform Reciprocal Enforcement of Support Act, or the Revised Uniform Reciprocal Enforcement of Support Act.”

The FCA further states that a “support order … issued by a tribunal of another state may be registered in this state for enforcement.” See FCA at Section 580-101 (19)(ii). So a New York court has the power to make a finding that a non-reciprocal country is a “State” within the meaning of UIFSA. But, so far, no case reports a New York court exercising this power. (There are anecdotal reports of foreign support judgments from countries not on the list of 26 being registered by the New York Family court in some cases, but no reported case.) Other states' courts have done so. See, e.g., Gur v. Gur, 2005 Cal. App. Unpub. LEXIS 11509, at *22 (Cal. 6th App. Div. 2005) (Israeli child support judgment recognized under UIFSA notwithstanding that Israel is not a reciprocal country). So the New York Family Court could certainly recognize a foreign judgment of domestic support if it chose to. But, given that, so far, no reported case tells us that one has, what should be done instead? The answer lies in the common law of New York.

The standard option for the holder of a foreign money judgment seeking to execute in New York is to domesticate the foreign award under the provisions of CPLR Article 53. But in the case of domestic relations judgments, Article 53 is no help. Article 53 specifically excludes domestic relations judgments from the definition of “Foreign Country Judgment.” Specifically, CPLR 530l(b) defines a Foreign Country Judgment as follows:

“Foreign country judgment” in this article means any judgment of a foreign state granting or denying recovery of a sum of money, other than a judgment for taxes, a fine or other penalty, or a judgment for support in matrimonial or family matters.

CPLR 530l(b).

So what is a party to do? In the absence of some New York precedent deeming a “country” a “State” within the meaning of UIFSA, as enacted in the FCA, the best option is to file an action for summary judgment in lieu of complaint pursuant to CPLR 3213, pleading that the foreign judgment is an “instrument for the payment of money” and seek to domesticate the judgment under principles of international comity. This sounds daunting, but New York has a long history of allowing the holders of foreign judgments to obtain domestication in New York where Article 53 provides no assistance. See Bond v. Lichtenstein, 129 A.D.3d 535 (1st Dept. 2015) (“Supreme Court properly granted plaintiff summary judgment [in lieu of complaint] based on the judgment she obtained from Hong Kong (see Sung Hwan Co. v. Rite Aid Corp., 7 N.Y.3d 78 (2006); Downs v. Yuen, 298 A.D.2d 177 (1st Dept. 2002)).

In Downs v. Yuen, 298 A.D.2d 177, 178 (1st Dept. 2002), for example, the New York's Appellate Division, First Department, found that the Hong Kong judgment of marital support could not be domesticated under Article 53 because of the domestic relations exclusion, but allowed domestication under principles of comity, holding that “there is no reason why the judgment should not be enforced under principles of comity.” The court noted that “the exclusion of foreign support awards in matrimonial and family matters 'is not designed to preclude recognition, but to acknowledge their unique status and treatment and leave them to existing law, which is ' quite generous in New York.” Id. at 177-78. Thus, the path seems clear.

Comity

Comity usually finds a willing home in New York, for New York is “a generous forum in which to enforce judgments … rendered by foreign courts.” CIBC Mellon Trust Co. v. Mora Hotel Corp., 100 N.Y.2d 215, 221 (2003). New York requires “nothing more … than that the judgment be shown to have been based on principles of … due process analogous to our own … .” David D. Siegel, New York Practice ' 473 (3d ed. 1999).

An application for recognition of a foreign judgment under comity merely asks a court to perform the “ministerial act” of converting the judgment into a New York judgment. John Galliano v. Stallion, 15 N.Y.3d 75, 81 (2014) (enforcement requires no analysis of the foreign proceeding); Sung Hwan Co. v. Rite Aid Corp., 7 N.Y.3d 78, 83 (2006) (foreign judgments should be enforced “without microscopic analysis of the underlying proceeding.”) And domestic relations judgments should fare no differently.

Recalcitrant judgment debtors are not deprived of a defense under comity because the law of comity provides the exact same basis to challenge the domestication of foreign judgments as those provided by Article 53. See CPLR 5304(b)(3) & (4) (“judgment was obtained by fraud” or “the cause of action on which the judgment is based is repugnant to the public policy of this state”). But the standard for rejection of the foreign judgment is high and infrequently met. Blacklink Transp. Consultants PTY v. Von Summer, 18 Misc.3d 1113(A), at *8 (Sup. Ct. N.Y. Cty. 2008) (only in clear-cut cases should a foreign judgment be rejected).

Thus, New York courts recognize foreign country money judgments unless “recognition of the judgment would do violence to some strong public policy” of the state. Greschler v. Greschler, 51 N.Y.2d 368, 377 (1980). For example, a “party is required to show gross inequity to establish the judgment would, 'do violence to some strong public policy of this State.' A judgment obtained against an individual that was represented by an attorney, is not, 'facially irregular nor unconscionable.'” Bond v. Lichtenstein, 2014 WL 3533447 (Sup. Ct., N.Y. Cty. July 14, 2014), aff'd, 129 A.D.3d 535 (1st Dept. 2015), appeal dismissed by, 26 N.Y.3d 949 (N.Y. 2015), leave to appeal dismissed by 2016 WL 71689 (N.Y. Jan. 7, 2016) (citations omitted).

Therefore, the public policy inquiry (the last refuge of obdurate judgment debtors) rarely results in refusal to enforce a foreign country judgment unless the judgment debtor demonstrates that the cause of action upon which the foreign judgment is based is “inherently vicious, wicked or immoral, and shocking to the prevailing moral sense.” Altman v. Altman, 150 A.D.2d 304, 307 (1st Dept. 1989). New York has “reserved the public policy exception for those foreign laws that are truly obnoxious.” Welsbach Elec. Corp. v. Mas-Tec North 'America, 7 N.Y.3d 624 (2006).

As the Supreme Court noted in Bond:

Departure from comity principles is rarely justified, [and] an evidentiary basis is required to support the claim of fraud or offensive public policies. The party asserting fraud has the burden of proof and must establish that it is derived from [conduct such as] “overreaching, the concealment of facts, misrepresentation or some other form of deception.” For comity purposes, the party opposing entry of judgment must establish “extrinsic fraud” was practiced by the party that obtained a judgment, preventing full and fair litigation of the matter because of a promise or agreement.

2014 WL 3533447 (Sup. Ct., N.Y. Cty. July 14, 2014), aff'd, 129 A.D.3d 129 (1st Dept. 2015), appeal dismissed by, 26 N.Y.3d 949 (N.Y. 2015), leave to appeal dismissed by 2016 WL 71689 (N.Y. Jan. 7, 2016).

Thus, a party opposing the domestication of a foreign child support judgment on comity grounds has an uphill battle to defeat the application. Of course, that doesn't mean that time and money won't be expended. And that effort and expense would be less if registration under UIFSA were granted.

So if the country in which your foreign judgment of support was obtained is not on the list of 26 reciprocal “States,” do not despair. File your motion for summary judgment in lieu of complaint under CPLR 3213 action, rely on comity, and collect your judgment. And there may be a recovery of fees.

Recovering Legal Fees

Even though a litigant is deprived of the streamlined process under UIFSA if the award is not from a country on the list of 26, there is still the possibility of recovering the legal fees expended in bringing the 3213 action. Domestic Relations Law ' 237(c) provides: “(c) In any action or proceeding for failure to obey any lawful order compelling payment of support or maintenance, or distributive award the court shall, upon a finding that such failure was willful, order respondent to pay counsel fees to the attorney representing the petitioner.”

Thus, where a litigant's refusal to satisfy a lawful foreign judgment is “willful,” a New York court may award fees in any enforcement action here. “DRL ' 237[c], permits the award of attorney fees where there is a willful failure to obey an order compelling payment of support. It is in the Court's discretion to determine whether there should be an award of attorneys' fees based on facts and circumstances of the case.” Bond at 3. In a related action, the Bond court explained that:

DRL ' 237[c] which states “in any action or proceeding for failure to obey any lawful order compelling payment of support or maintenance, or distributive award the court shall, upon a finding that such failure was willful, order respondent to pay counsel fees to the attorney representing the petitioner,” does not contain such requirement that the award be based on the circumstances of the case, or the financial status of the respective parties, and does not create a rebuttable presumption that fees be awarded to the less monied spouse. When the court makes a finding that the defendant's failure to comply was willful neither the equities of the case or the financial circumstances of the parties is relevant. When the court has made a finding that the defendant willfully failed to comply with a court order or judgment pursuant to Domestic Relations Law ' 237[c] the court is required to award a counsel fee and the only reason for holding an evidentiary hearing is so that the value of plaintiff's counsel's services can be scrutinized. A showing of financial need is not a prerequisite for an award of counsel fees under Domestic Relations Law ' 237[c], and the plaintiff is not required to submit a statement of net worth.

Bond v. Lichtenstein, 2014 WL 6450290 (Sup. Ct. N.Y. Cty. Nov. 14, 2014) at 2.

Not only are the fees expended in bringing the 3213 action recoverable, but the fees expended in recovering the fees are also recoverable, the so-called “fee on fee” award. See O'Shea v. OShea, 93 N.Y.2d 187 (1999) (fees on fees awarded under DRL 237(a) to “further the objectives of litigation parity, and to prevent the more affluent spouse from wearing down or financially punishing the opposition by recalcitrance, or by prolonging the litigation.”). See also Wyser-Pratte v. Wyser-Pratte, 160 A.D.2d 290 (1st Dept. 1990) (fees on fees DRL 237(a)); K.J. v. M.J. , 14 Misc.3d 1235(A) (Sup. Ct. Westchester Cty. 2007) (fee on fee in matrimonial action); Glasso, Langione & Butler v. Liotti, 22 Misc.3d 450 (Sup. Ct. Nassau Cty. 2008).

While no reported case finds a New York court awarding fees on fees under DRL 237(c), the analogous authority provides that such an award is proper. Indeed, it is well settled that the court has “discretion to grant counsel fees to the wife for legal services in connection with the hearing to determine the amount of the fee award.” O'Shea, 93 N.Y.2d at 97. Similarly, Wyser-Pratte, 160 A.D.2d at 290 states:

[T]he award of fees for the time reasonably spent in making the application for counsel fees … comports with the general purpose of the statute and should be encompassed within its scope. If the time spent in applying for fees was not included in the award, then the very purpose of the statute could be frustrated by the more economically advantaged spouse engaging in protracted proceedings on the fee application and thereby burdening the less affluent spouse with onerous counsel fees.

(At one time, fees on fees were found not to be available under DRL 237(c) by the Second Department. See Swift v. Swift, 260 A.D.2d 467 (2d Dept. 1991). But the Second Department relied on the lower court opinion in O'Shea in rejecting fees on fees. That O'Shea decision, however, was overturned by the Court of Appeals and thus, even though Swift itself was never overruled, the weight of the law is against its finding.)

Conclusion

In sum, while it would be better and more efficient to obtain registration under UIFSA, where registration is not available, a New York holder of a foreign support judgment may still obtain summary action under the CPLR and principles of comity and recover the fees expended in so doing. Those in other states may be able to use these lessons to work within their own states' laws to obtain comparable results.

Seth Lapidow and Michael Rowe are partners at Blank Rome, based in Princeton, NJ. Heidi Tallentire is a New York-based partner at the firm. They represented the mother in Bond v. Lichtenstein. This article also appeared in The New York Law Journal, an ALM sibling publication of this newsletter.