Edward L. Mollis for petitioner.
Arthur L. Gould for respondent appearing specially.
total award of $30 a week for the maintenance of the wife and the two children; and a default judgment to that effect was entered in the Supreme Court, Bronx County, on February 21, 1952. That judgment is in conventional form, granting petitioner a separation from defendant's bed and board forever, because of cruelty, abandonment, and failure or refusal adequately to support her and the infant issue of the marriage; it grants the mother custody of the two children and also $10 a week as permanent alimony for herself and $20 a week for the support of the two children, from February 21, 1952. Thereafter, on April 9, 1952, respondent moved to strike out from that judgment those money provisions on the ground that the Supreme Court had not acquired in personam jurisdiction over respondent in the separation action. Such motion was granted by Supreme Court Justice VALENTE, and on May 8, 1952, he entered an order reading, in part:
"and it appearing that at the time of the commencement of this action the defendant was a resident and domiciliary of the State of Oklahoma and not a resident of the State of New York. * * *
"`Ordered that said motion be and the same is hereby granted, and it is further ordered, adjudged and decreed that the aforesaid default decree of separation herein entered in the office of the Clerk of the County of Bronx on the 21st day of February, 1952 be and the same is hereby modified by striking and vacating therefrom the last paragraph thereof'". (I.e. the above-described money provisions.)
The granting of that motion was explained in the following memorandum published
sub nom. Markman v. Markman (N. Y. L. J., May 5, 1952, p. 1793, col. 5).
"Motion by defendant to modify the decree by striking out the provision directing the payment of alimony is granted. The defendant was served in Oklahoma and did not appear, answer or defend. There is no proof of facts to overcome his allegations of non-residence. (
Reschofsky v. Reschofsky, 272 App. Div. 694). Settle order."
Reschofsky v. Reschofsky (
supra) held that in an action for separation against a nonresident defendant who is served by publication, although the court may render a default judgment effectively dissolving the marital status, it may not award alimony or a money judgment against the defendant where he does not appear generally, in the absence of a prior seizure of
If the warrant prove ineffectual to eventuate in the entry and due performance of an appropriate support order in the instant proceeding and respondent remain in Oklahoma, petitioner may elect to invoke, instead, the remedies provided by the Uniform Support of Dependents Acts of New York (L. 1949, ch. 807, as amd.) and of Oklahoma (Okla. Stat. tit. 12, §§ 1601-1610). By filing in this court an "initiating State" petition under that New York statute there may be ultimately entered an appropriate support order against respondent in an Oklahoma "responding State" court and enforced there. Such procedure is designed to create an effective civil remedy to enforce support of abandoned wives and children when a husband-father absconds to another State and leaves dependents here (see
"Vincenza" v. "Vincenza", 197 Misc. 1027, 1028-1029; Reciprocal Support Legislation, Current Trends in State Legislation, 1952, University of Michigan Law School Legislative Research Center, pp. 164-296). But that legislation does not, as misconceived by petitioner's attorney, require Oklahoma to give full faith and credit to a support order entered under the Domestic Relations Court Act of the City of New York, as distinguished from the joint co-operation in a proceeding under the reciprocal Uniform Support of Dependents statutes. As held in
Reisman v. Reisman (46 N. Y. S. 2d 335), the procedure for collection of a Family Court support order entered under the Domestic Relations Court Act of the City of New York is exclusively provided in, and limited by, the particular statute; arrears accrued under such an order do not constitute a vested obligation in the nature of a liquidated debt which may be docketed as a judgment, as if unpaid permanent alimony awarded in a final judgment of divorce or separation; nor is a family court support order entitled to full faith and credit in a sister State. Finally, this decision is based on the afore-mentioned notice of special appearance, affidavits, briefs and letters to and from counsel and the Bronx County Clerk's entire file in the separation action. Notice shall be given pursuant to the subjoined direction. [*] The opinion as filed sets forth the true names of all parties but as here published substitutes fictitious names and disguises certain other details, in consonance with the spirit of section 52 of the Domestic Relations Court Act of the City of New York (L. 1933, ch. 482).