Colleen D. Duffy
Martin J. Rosen, Esq.
Attorney for Plaintiff
Mr. David R. Bicknell
Defendant Pro Se
, J.
This Decision and Order addresses a pro se motion filed by Defendant David R. Bicknell ("Defendant"), a resident of Pennsylvania, which motion the Court finds was filed by Defendant solely for the purpose of attempting to circumvent Orders pertaining to child support and maintenance issues in the past by courts in New York, Massachusetts and Vermont.
Defendant filed this action on December 20, 2012, seeking an order declaring: (1) that his obligations for maintenance of his former wife, Plaintiff Christine Bicknell ("Plaintiff"), and support of the parties' two children (the "Subject Children), pursuant to his 1993 Judgment of Divorce, have been fully satisfied; (2) that his pension and social security payments should be paid directly to him, rather to Plaintiff in payment of arrears; and (3) that certain funds which were deposited into an account in 1993, to be used as security against Defendant's default in payment of child support and maintenance, be returned to Defendant, with interest.
On February 11, 2013, Plaintiff, a resident of Connecticut, filed a cross motion seeking dismissal of the Order to Show Cause, together with Plaintiff's affidavit in support ("Plaintiff's Aff."), and the affirmation of Plaintiff's counsel, both dated February 7, 2013.
On March 8, 2013, Defendant filed an affidavit in further support of his order to show cause and in opposition to Plaintiff's motion.
On March 18, 2013, Plaintiff filed an affidavit, together with the affirmation of Martin J. Rosen, Esq., in further support of her cross motion.
I.RELEVANT PROCEDURAL HISTORY
A.The New York Divorce Action
Plaintiff and Defendant were divorced in 1993 pursuant to a Judgment of Divorce, dated April 23, 1993, which was subsequently amended on September 22, 1993. See Amended Judgment of Divorce, Ex. B, and Second Amended Judgment of Divorce ("Second Amended Judgment"), Ex. D, to Plaintiff's Aff. Initially, Defendant had appeared in the divorce proceeding but later defaulted.
Pursuant to the Second Amended Judgment, Plaintiff was awarded sole custody of the Subject Children and Defendant was ordered to pay Plaintiff $400.00 per week for child support, and $250.00 per week for maintenance for a period of five years, and to pay Plaintiff, within 90 days after service of the Second Amended Judgment, the sum of $50,800.00 for retroactive child support and $31,700.00 for maintenance retroactive to June 25, 1991, the date of the commencement of the divorce action. Plaintiff also was awarded a money judgment in the amount of $71,347.17, together with statutory 9% interest from December 3, 1992. Plaintiff also was awarded a 50% distributive share of Defendant's pension held by the Morgan Guarantee Compensation Plan (the "JP Morgan Pension") and, inter alia, attorneys' fees in the amount of $10,000.00.
Pursuant to the Second Amended Judgment, Plaintiff also was appointed receiver of certain funds, which had been sequestered from the sale of real estate owned by the parties (the "Sequestered Funds"); Plaintiff was authorized by the Second Amended Judgment to use such funds to pay future child support payments, if Defendant failed to make such payments.
Defendant thereafter filed a motion to vacate his default which was denied. See Decision of the Hon. Gordon W. Burrows, New York State Supreme Court Justice, dated October 5, 1993.
B.The Massachusetts Action
In 1994, Plaintiff sued Defendant in the Massachusetts Trial Court, Probate and Family Court Department (hereinafter, the "Massachusetts Court"), to recover amounts due to her from Defendant pursuant to the terms of the Second Amended Judgment. On June 3, 1994, the Massachusetts Court held that the Second Amended Judgment was entitled to full faith and credit and enforcement by the State of Massachusetts. The Massachusetts Court found that, except for payments made to Plaintiff from the JP Morgan Pension, Defendant had failed to comply with any of his obligations pursuant to the Second Amended Judgment and determined that, pursuant to the Second Amended Judgment, Defendant owed Plaintiff the total sum of $200,248.00. The Massachusetts Court also held that Plaintiff and Defendant had an equal interest in the Sequestered Funds and awarded Defendant a credit in the amount of $111,000.00 (which constituted his one half interest in the Sequestered Funds), which credit was offset against his total indebtedness of $200,248.00. Thus, the Massachusetts Court issued a judgment in Plaintiff's favor against Defendant in the amount of $89,248.00 ($200,248.00 - $111,000.00)(the "Massachusetts Judgment").
The Massachusetts Court noted that the Second Amended Judgment had failed to identify the parties' ownership interest in the Sequestered Funds, but held that, as the funds resulted from sale of marital property, the parties shared equally in ownership of the funds.
The Massachusetts Court also found that Defendant's failure to pay arrears he owed or to make his continuing child support and alimony payments arose from Defendant's voluntary and willful failure to seek appropriate employment and his dissipation of marital assets.
C.Second New York Action
In 1995, Plaintiff filed an action in New York State Supreme Court seeking an order punishing Defendant for contempt and enforcing both the Second Amended Judgment and the Massachusetts Judgment (the "Second New York Action"). On July 26, 1995, the Hon. Fred L. Shapiro, Acting Supreme Court Justice, awarded Plaintiff a money judgment for arrears in the amount of $112,811.59 (the "Money Judgment").
Judge Shapiro also issued a written Decision and Order on September 1, 1995, addressing whether that money judgment could be enforced against the Sequestered Funds. Judge Shapiro held that Defendant already had been given full credit for his portion of the Sequestered Funds by the Massachusetts Court when it credited him $111,000.00 towards past arrears and that, as a result, Defendant had no remaining ownership interest in the Sequestered Funds.
Thereafter, on September 7, 1995, Judge Shapiro issued an Order for Levy and Execution ("September 1995 Levy Order"), permitting Plaintiff to enforce the Money Judgment via levy against Defendant's interest in the J.P. Morgan Pension. On October 23, 1995, the Court issued a Qualified Domestic Relations Order pursuant to its September 1995 Levy Order, awarding Plaintiff $726.00 per month from Defendant's interest in that pension plan.
The September 1995 Levy Order did not pertain to Plaintiff's interest in the pension plan, rather, it pertained only to Defendant's fifty percent share of the J.P. Morgan Pension. A previous Qualified Domestic Relations Order, dated January 24, 1994, had been issued specifying that Plaintiff was entitled to receive 50% of the amount in the JP Morgan Pension.
On September 12, 1995, the Court also adjudged Defendant to be in willful contempt of court for failing to satisfy his Court ordered support obligations, and sentenced Defendant to six months in the Westchester County Penitentiary, with a purge amount of $112,00.00.
D.The Vermont Action
In 1998, Plaintiff sought enforcement of the Second Amended Judgment in Vermont. On October 15, 1998, the Vermont Family Court, Addison County ("Vermont Family Court"), after a hearing at which both parties were present, issued an order
At that time, Defendant was residing in Vermont and the Second Amended Judgment and the September 1995 Levy Order were registered as foreign orders pursuant to the Uniform Interstate Family Support Act ("UIFSA"). See Family Court Act, Article 5-B § 580-601. A fundamental precept of UIFSA is that there is to be only one controlling support order, even when multiple states are involved in enforcing it. Pursuant to UIFSA, only the issuing state may modify the support order; jurisdiction to modify a support order may only be sought if both parties no longer reside in the issuing state or the parties have agreed in writing that another state may exercise such jurisdiction. Family Court Act 5-B § 580-601.
finding that Defendant was in arrears on child support in the amount of $78,897.08 for the time period of July 1, 1995 through October 15, 1998 (the "Vermont 1998 Order"). Pursuant to the Vermont 1998 Order, Defendant was required to pay $400.00 per week in child support and an additional $100.00 per week toward payment of the arrears.
Contrary to Defendant's current contention, the Vermont 1998 Order specifically noted that "[t]he Court has not addressed an issue of arrears prior to June 1995 as that issue has been addressed by the 9/7/95 Order of Westchester Cty New York."
On September 14, 2000, the Vermont Family Court issued an order finding that Defendant was in arrears in the amount of $100,402.54 as of August 31, 2000, and reiterated its order directing Defendant to pay $400.00 per week in child support, as well as ordering Defendant to pay an additional $100 per week toward the arrears (Vermont 2000 Order).
The Vermont 2000 Order also specifically noted that it calculated arrears only from the date of June 1995 because all prior arrears had been addressed by the September 1995 Levy Order.
On February 6, 2003, a further order was issued by the Vermont Family Court, finding that Defendant's child support arrears had grown to $105,641.24, and that he owed interest in the amount of $28,649.90 ("Vermont 2003 Order"). Defendant also was levied a civil penalty in the amount of $523.87 and was ordered to pay $500.00 per week toward the arrears. The Vermont Family Court also directed that Defendant's wages continue to be withheld to pay for such amounts.
Defendant appealed the Vermont 2003 Order. On June 19, 2003, the Addison County District Court in Vermont, affirmed the Vermont 2003 Order and, on December 18, 2003, the Vermont Family Court entered a Child Support Order of arrears against Defendant in the amount of $147,491.93 ($105,641.24 + $523.87 + $41,326.82).
Interest which continued to accrue on the unpaid arrears had grown to $41,326.82 by the time of the entry of the Child Support Order.
In January 2004, Defendant failed to appear for a court proceeding in Vermont and a warrant was issued for his arrest.
E.Third New York Action
On November 3, 2008, Plaintiff sought an order in Supreme Court, Westchester County, to enforce the Vermont 2003 Order against Defendant's pension plan assets. By Order, dated March 17, 2009, the Honorable Anthony A. Scarpino, A.S.C.J., granted Plaintiff's application, found that Defendant still owed the lion's share of the Vermont 2003 Order, $101,620.73, and ordered that the $726.00 per month that had been taken out of Defendant's share of his pension to pay earlier arrears owed to Plaintiff continue to be garnished from Defendant's J.P. Morgan pension to satisfy the $101,620.73 still owing under the Vermont 2003 Order.
F.Second Vermont Action
In 2011, Defendant filed an administrative challenge with the Vermont Office of Child Support ("OCS"), contending that the OCS accounting of the amounts owed to Plaintiff for child support were incorrect and that he had fully paid all amounts due. Defendant also contended that the inclusion of interest in the Vermont 2003 Order was a violation of federal law and that Vermont had no jurisdiction in the matter.
On July 31, 2011, the Vermont OCS issued a decision (the "2011 Administrative Decision") denying Defendant's challenge in its entirety. In the 2011 Administrative Decision, the OCS had determined that Defendant's calculations were seriously flawed, in that he failed to account for his obligation to pay additional sums as child support pursuant to the Second Amended Judgment, and incorrectly ignored subsequent judgments against him by courts in New York, Massachusetts and Vermont, which included interest and other charges.
G.Fourth New York Action
This action ensued. Despite the 2011 Administrative Decision, Defendant again is seeking to end the garnishment of his social security and pension benefits and a return of alleged overpayments, an accounting of the Sequestered Funds, and a money judgment for amounts he claims to have overpaid, with interest and penalties.
II.CONCLUSIONS OF LAW
As set forth further below, Defendant's claim is denied in its entirety. This Court lacks jurisdiction to address Defendant's claim. Even if the Court had jurisdiction to hear the action it would be denied. Defendant is collaterally estopped as the claims raised by Defendant in this action already have been fully litigated and denied in Vermont.
The Court notes that, in this proceeding, despite the 2011 Administrative Decision, Defendant has averred that no prior application for the relief sought in the Order to Show Cause had been made. See Defendant's Affidavit in Support of his Motion, sworn to August 6, 2012 ("Defendant's Aff."), p.8. As noted below, Defendant's persistent efforts, in a variety of forums, to evade his child support and maintenance obligations is unavailing. Accordingly, Defendants' motion is dismissed with costs. In addition, the Court enjoins Defendant from filing any further motions pertaining to his divorce and/or maintenance and child support obligations without the prior consent of this Court. Plaintiff also is awarded attorneys' fees. The Court will hold a hearing on December 10, 2013, as to the amount of attorneys' fees.
A.Defendant's Claims are Jurisdictionally Barred
Defendant's order to show cause is dismissed as Defendant is jurisdictionally barred from commencing this action. In New York, pursuant to CPLR § 302(b), "long arm" personal jurisdiction in a matrimonial proceeding involving a demand for support, alimony, maintenance, distributive awards, or special relief, may be conferred over a non-resident respondent only if the party seeking relief resides in New York. Kramer v. Paronen, 13 Misc 3d 1235A, 2006 NY Misc. Lexis 3283, ***4 (Sup. Ct., New York Co. 2006). Here, neither party resides in New York State. Thus, New York's long arm statute is inapplicable.
In addition, Domestic Relations Law § 244, which provides continuing personal jurisdiction only for enforcement of a support order in a matrimonial case, also does not confer the jurisdiction of this Court over Defendant's application. DRL § 244 ("where a spouse . . . defaults in paying any sum of money as required by the judgment or order directing payment thereof, or as required by the terms of an agreement or stipulation incorporated by reference in a judgment, the court shall make an order directing the entry of judgment for the amount of such arrears . . ."); Haskell v. Haskell, 6 NY2d 79, 81-82 (1959).
This matter is not an enforcement action. Rather, Defendant seeks an accounting of payments he previously has made and a declaration that he has fully paid all amounts due. Ferro v. Bologna, 38 AD2d 854, 855 (2d Dept.)(statute whose intent is to provide shield of economic protection cannot be turned into exculpatory sword), aff'd 31 NY2d 30 (1972); Hummel v. Hummel, 62 Misc 2d 595, 604 (Sup. Ct. New York Co. 1970); see also LoCascio v. LoCascio, 101 Misc 2d 679 (Sup. Ct., Queens Co. 1979) (DRL 244 merely provides procedural methods to enforce maintenance and child support provisions).
B.Defendant is Collaterally Estopped from Raising this Claim
Even if this Court were able to exercise jurisdiction over this matter, Defendant's claims would be barred because Defendant litigated his claims in Vermont in 2011.
The common law doctrine of res judicata bars litigation of a claim or defense if there was a final judgment in a litigation in which the parties, subject matter, and causes of action are identical or substantially identical. O'Connell v. Corcoran, 1 NY3d 179 (2006).
The doctrines of res judicata and collateral estoppel apply to the quasi-judicial determinations of administrative agencies when brought before an agency pursuant to its adjudicatory authority to decide cases using procedures substantially similar those used by courts of law. United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422 (1966); Ryan v. New York Telephone Co., 62 NY2d 494, 499 (1984); Delozier v. State, 160 Vt. 426, 429 (1993). Final agency determinations are conclusive and binding on the courts. Ryan, at 499.
Here, Defendant fully and fairly litigated these same claims in 2011 in Vermont before the Vermont OCS. Both Plaintiff and Defendant appeared in that matter and proceeded pro se. The same issues that were raised in the Vermont proceeding have been again raised by Defendant in this action, to wit, that his support obligation was primarily defined by the 1993 Second Amended Judgment and requesting a reconciliation of the accounting regarding amounts due under that support obligation. In both actions, he has contended that the accounting of the amounts he owed to Plaintiff for child support were incorrect and that he had fully paid all amounts due. Defendant has not raised any new issues or facts that were not already raised in the 2011 proceeding in Vermont.
Indeed, although Defendant's claims are collaterally barred, they are also meritless. The Court notes that Defendant continues to contend here that he was never fully credited for his interest in the Sequestered Funds, despite the fact that, in 1994, the Massachusetts Court expressly stated that Plaintiff was to have all of the Sequestered Funds and that, after giving Defendant credit for his portion ($111,000) of the Sequestered Funds, he still owed Plaintiff $89,248.00. Again, in 1995, Judge Shapiro in New York State Supreme Court noted that Defendant had been given full credit for his interest in the Sequestered Funds by the Massachusetts Court and was not entitled to any further credit. Finally, the Vermont 2011 Administrative Decision also denied Defendant's request for this same $111,000 credit, finding that the Massachusetts Court had credited him in 1994.
--------
In addition, the fact that the Vermont 2011 Administrative Decision was made by OCS, an administrative agency, does not prevent Defendant's claims from being collaterally estopped in this action. The Vermont OCS was operating in a judicial capacity when it issued its decision in 2011. See 33 V.S.A. § 4108 (authorizing OCS to establish and implement grievance procedure to contest OCS decisions, with right to appeal to Family Court).
Finally, there is no evidence that Defendant was not given a full and fair opportunity to litigate. Ryan v. New York Telephone Co., 62 NY2d 494, 499 (1984) (opponent of collateral estoppel bears burden to establish that he did not have adequate opportunity to litigate in administrative proceeding).
Accordingly, even if this Court had jurisdiction over these claims, Defendant would be collaterally estopped from asserting them as they previously had been determined in Vermont. Allied Chemical v. Niagara Mohawk Power Corp., 72 NY2d 271, 276-77 (1988)(because state agency decision was quasi-judicial in character, party who sought agency adjudication is precluded from bringing identical claim before a court by collateral estoppel); Ryan, at 499 (employee collaterally estopped from bringing same claims in court which were decided by unemployment agency after a full and fair hearing).
For all these reasons, Defendant's application is dismissed in its entirety.
C.Plaintiff's Motion for Attorney's Fees and Sanctions is Granted
Defendant's filing of this proceeding in New York, after a determination of the issues already had been made in Vermont in 2011, is frivolous within the meaning of 22 NYCRR § 130-1.1, and evidences Defendant's ongoing effort to evade his child support obligation through meritless litigation, warranting sanctions. For the reasons below, the Court awards Plaintiff costs and attorney's fees.
The Court may award costs and attorneys fees resulting from frivolous conduct. 22 NYCRR § 130-1.1(a). The Court may also impose financial sanctions upon a party or an attorney who engages in frivolous conduct. Frivolous conduct is defined to include conduct that: (1) is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) asserts material factual statements that are false. 22 NYCRR § 130-1.1(c).
In this case, Defendant has submitted an affidavit that asserts a false statement of material fact; Defendant has averred that no prior application for the relief he is seeking has been made. Defendant failed to apprise the Court that he made this same application in Vermont in 2011 and these issues were determined there. Defendant's Aff., p. 8. In addition, Defendant has brought this action despite the fact that he has previously litigated the issues in Vermont. Such conduct is frivolous and has caused Plaintiff to incur unnecessary costs and attorneys' fees. Accordingly, an award of attorney's fees and costs in favor of Plaintiff against Defendant is warranted. Weissman v. Weissman, 103 AD3d 886, 887 (2d Dept. 2013); Bell v. State, 96 NY2d 811, 811 (2001)(sanction imposed against pro se litigant who made frivolous appeal).
In addition, Defendant's conduct in obstructing Plaintiff's right to maintenance and child support by engaging in repeated meritless litigation, while at the same time failing to pay numerous judgments against him in Plaintiff's favor, is an abuse of the judicial process. Vogelgesang v. Vogelgesang, 71 AD3d 1132, 1134 (2d Dept. 2010). Accordingly, the Court finds that Defendant's access to the Court should be limited to the extent that he is enjoined from initiating any further actions or motions in this matrimonial action without prior written approval of the Court. Id.; Weissman, at 887 (upholding trial court's grant of permanent injunction and counsel fees for violation of 22 NYCRR § 130-1.1).
The Court considered the following in deciding the motion: Order to Show Cause, filed December 20, 2012, and Defendant's Affidavit in Support, sworn to August 6, 2012; Notice of Cross Motion, filed February 11, 2013, Plaintiff's Affidavit in Support, and Affirmation of Martin J. Rosen, Esq., both dated February 7, 2013; Defendant's Reply Affidavit, filed March 8, 2013; and Plaintiff's Reply Affidavit and Reply Affirmation of Martin J. Rosen, Esq., filed March 18, 2013.
This constitutes the Decision and Order of this Court.
Dated: November 1, 2013
White Plains, New York
ENTER:
___________________________
HON. COLLEEN D. DUFFY
Supreme Court Justice