Oka v. Oka , 92 Misc. 2d 1080 ( 1977 )

OPINION OF THE COURT

Memorandum.

Order reversed, without costs, and the matter remanded to the court below for a determination de novo following a hearing on the issue of subject matter jurisdiction.

Plaintiff brought an action against her former husband in Civil Court for arrears in support payments pursuant to a Haitian divorce decree. She moved for summary judgment and defendant cross-moved to dismiss the complaint. The court below denied summary judgment and granted the cross motion to dismiss the complaint for lack of jurisdiction without prejudice to institution of a plenary proceeding in either Family Court or Supreme Court.

The issue of whether the Civil Court has jurisdiction to entertain an action for arrears under a divorce decree of a foreign Nation appears to be one of first impression.

While the Civil Court does not have jurisdiction to entertain independent actions to recover outstanding arrears under domestic matrimonial judgments or orders of the Family Court or of the Supreme Court in that the Legislature has provided exclusive enforcement remedies in those courts (Smith v Smith, 48 Misc 2d 895; Kafalian v Kafalian, 27 Misc 2d 1065; Kahn v Sampson, 23 AD2d 539; Melchore v Melchore, 212 NYS2d 213), Civil Court does have jurisdiction to award a judgment for arrears arising out of judgments or decrees of a sister State if those judgments and decrees are entitled to full faith and credit (Sistare v Sistare, 218 US 1; Smith v Smith, supra). A judgment or decree will be entitled to full faith and credit if it is final, that is, if it may not be modified retroactively so as to deprive a wife of alimony already accrued (Sistare v Sistare, supra; Hatoff v Hatoff, 41 Misc 2d 1007; Morse v Morse, 3 Misc 2d 163). Under comity the same principles should apply to decrees of foreign countries as to decrees of sister States. The question remains as to the finality of the Haitian decree. A hearing should be held on that issue, at which time the parties may have the opportunity to introduce the applicable Haitian law.

Concur: Pino, P. J., Rinaldi and Weinstein, JJ.