New York Divorce Report - New York's Divorce and Family Law Blog

In this day and age in which parties obtain an order regarding child support in one state and then move to another jurisdiction, it is important to know that the original support order cannot be modified or even extended by a court in the second state, so said the New York Court of Appeals in the case Spencer v. Spencer.

As reported in the Times Union, the Spencers divorced in Connecticut in 1994. That same year, Mrs. Spencer and the parties’ three children moved to Albany County. The father remained in Connecticut.

At the time of the divorce, a Connecticut court ordered James Spencer to pay $250 a week for each child and to provide medical insurance. The payments were to continue until each child turned 18, when child support terminates in Connecticut.

Spencer's oldest son turned 18 in 2004, ending his father's obligation under the Connecticut order. But Susan Spencer filed a petition in Albany County in June 2005, seeking to continue payments until their son turned 21, that being "consistent with the laws of the state of New York."

The Court of Appeals declined to modify the Connecticut order or to extend Mr. Spencer’s obligation to pay support.

Under the Full Faith and Credit for Child Support Orders Act (FFCCSOS) and the Uniform Interstate Family Support Act (UIFSA), “the state issuing a child support order retains continuing, exclusive jurisdiction over its child support orders so long as an individual contestant continues to reside in the issuing state [28 USC §1738B(d) and Family Court Act §580-205]

Because the respondent continued to reside in Connecticut, the state which issued the original child support order, Connecticut retained continuing and exclusive jurisdiction, even though support for the eldest son terminated upon his reaching 18 years of age. Thus, any change to the respondent’s obligations imposed by New York would constitute an impermissible exercise of jurisdiction modifying the Connecticut order, a clear violation of FFCCSOS and UIFSA.

It would have been impermissible for a New York court to extend the support order for three years (from age 18, when the Connecticut order expired, until age 21, when child support terminates in New York).

A modification is "a change in a child support order that affects the amount, scope, or duration of the order and modifies, replaces, supersedes, or otherwise is made subsequent to the child support order" (28 USC § 1738B [b]). Here, the New York order changed the amount of the initial order (increasing it by $100 per week), the scope of the initial order (adding a provision for college expenses), and the duration of the initial order (extending the father's obligation for three years). Undoubtedly, the New York order was "made subsequent" to the Connecticut order. Therefore, under the plain language of the federal statute, a second order for child support is a "modification" of Connecticut's order.

This decision seems to make a whole lot of sense. If a party was able to modify an existing order merely by relocating, no child support order would be final. There would be nothing to prevent a party to litigate in one state and then move to another with a more favorable law. This decision clearly prevents that from

The other day I received a telephone call from one reader of this blog. The caller questioned whether I was one of the attorneys in the case I commented on. When I said that I was not in any way connected to the case, the caller asked, would there have been a “better” result if I was somehow involved in the case. I could not answer that question.

When I comment on a case, I do so, for one of several reasons:

1. The case sets a precedent or expands some area of law, (last week’s post about the Appellate Division recognizing a Canadian same sex marriage)
2. The decision reinforces a proposition I previously addressed; or
3. I just find the decision to be interesting.

It would be unethical for me to suggest that if I was involved in a case that the result would be in any way different. Indeed, New York’s rules regulating attorney advertising prohibit attorneys from making such representations. In fact, the rules require lawyer’s web sites to include the disclaimer, “Prior results do not guarantee a similar outcome.”

There could be a lot of reasons why a court reached a particular decision in a case. The facts or the existing law will most likely be determinative of the outcome. Of course, an attorney’s advocacy skills, his/her ability to frame and communicate the relevant facts and law, will influence the case’s outcome. But, it is impossible to predict, with certainty, what will resonate with a judge.

If any attorney represents that he can achieve, with certainty, a particular result in a contested matter, run away. In litigation, the only certainty is that there is no certainty. No one can guarantee an outcome. It is for this very reason that lawyers are required to state that “Prior results do not guarantee a similar outcome.”

A New York appeals court unanimously ruled that a gay couple's marriage in Canada should be recognized in New York.

As pointed out in the Sui Generis-a New York Law Blog, at issue in Martinez v. County of Monroe was whether Monroe Community College properly denied health care benefits to the female partner of a female student. The MCC student had previously married her partner in Canada.

The New York Legal Update fills in some more of the relevant facts:

On July 5, 2004, the plaintiff Patricia Martinez married her same-sex partner, Lisa Ann Golden, in the Province of Ontario, Canada. Ms. Martinez was an employee of the defendant Monroe Community College, in Rochester. On the basis of that marriage, Ms. Martinez applied to the college two days later on July 7, 2004 for spousal health care benefits for Golden. The College admittedly provided health care benefits for the opposite-sex spouses of its employees. However, on November 24, 2004, the College's Director of Human Resources denied the plaintiff's application for spousal health care benefits.


The plaintiff then commenced an action seeking, among other things, a declaration that the College's failure to recognize her marriage for purposes of her spousal health care benefits application violated her rights under the Equal Protection Clause of the New York State Constitution and Executive Law § 296,

In deciding the couple’s rights to insurance coverage, the Court had to decide whether the parties were legally married.   The Court then provided a review of  the test of recognizing the validity of marriages obtained outside of New York:

For well over a century, New York has recognized marriages solemnized outside of New York unless they fall into two categories of exception: (1) marriage, the recognition of which is prohibited by the "positive law" of New York and (2) marriages involving incest or polygamy, both of which fall within the prohibitions of "natural law"  . . .

Thus, if a marriage is valid in the place where it was entered, "it is to be recognized as such in the courts of this State, unless contrary to the prohibitions of natural law or the express prohibitions of a statute"

The Court then pointed out that by applying the "marriage-recognition" rule, New York has recognized a marriages which would have not been valid if solemnized in New York.

We conclude that plaintiff's marriage does not fall within either of the two exceptions to the marriage-recognition rA]bsentA]bsent any New York statute expressing clearly the Legislature's intent to regulate within this State marriages domiciliariesdomiciliariesso Van Voorhis, 86 NY at 37). The Legislature has not enacted legislation to prohibit the recognition of same-sex marriages validly entered into outside of New York, and we thus conclude that the positive law exceptiVoorhishe general rule of foreign marriage recognition is not applicable in this case. .  .

The natural law exception also is not applicable. That exception has generally been limited to marriages involving polygamy or incest or marriages "offensive to the public sense of morality to a degree regarded generally with abhorrence" (May, 305 NY at 493), and that cannot be said here. . . . .

The Court of Appeals noted that the Legislature may enact legislation recognizing same-sex marriages and, in our view, the Court of Appeals thereby indicated that the recognition of plaintiff's marriage is not against the public policy of New York. It is also worth noting that, unlike the overwhelming majority of states, New York has not chosen, pursuant to the federal Defense of Marriage Act (28 USC § 1738C), to enact legislation denying full faith and credit to same-sex marriages validly solemnized in another state.

The Court concluded that the plaintiff’s marriage to Golden, which was valid in the Province of Ontario, Canada, would be entitled to recognition in New York. The Court concluded that absent express legislation to the contrary, prohibiting the recognition of same-sex marriages, such marriages would be entitled to recognition in New York.