The following papers read on this motion: Order to Show Cause, Affidavit, Affirmation, and Exhibits (Mot. Seq. 01) x Notice of Cross-Motion, Affidavit, Affirmation, and Exhibits (Mot. Seq. 02) x Affidavit in Further Support and in Opposition, Affirmation, and Exhibits x Reply Affidavit, Affirmation, and Exhibit x Upon the foregoing papers, the Plaintiff moves by Order to Show Cause (Mot. Seq. 01), seeking an Order: (1) Pursuant to 28 USC §1738, affording full faith and credit to the “Judgment of Divorce” and “Divorce Agreement,” filed in the Middlesex Probate and Family Court in the State of Massachusetts, and directing the Clerk of the Court to register same pursuant to Article 54 of the CPLR; (2) Pursuant to the parties signed Divorce Agreement dated June 29, 2017, directing the Defendant to produce, to the Plaintiff, his state and federal tax returns from 2017 to the present; (3) Pursuant to the parties signed Divorce Agreement dated June 29, 2017, awarding the Plaintiff additional supplemental allocated support; (4) Directing the Defendant to pay, directly to the Plaintiff’s counsel, the Plaintiff’s counsel fees in the sum of $15,000.00; and (5) For such other and further relief as this Court may deem just and appropriate. The Defendant cross moves by Notice of Cross-Motion (Mot. Seq. 02), seeking an Order: (1) Pursuant to UIFSA §580-211, denying the application of the Plaintiff to modify the unallocated support obligation of the Defendant, in that the Commonwealth of Massachusetts has exclusive continuing jurisdiction to modify same; (2) Pursuant to GBL §11, dismissing the Plaintiff’s Order to Show Cause based upon improper service and/or defective proof of service; (3) Pursuant to CPLR §2304, issuing a protective Order as against the Subpoena Duces Tecum issued on behalf of the Plaintiff; (4) Denying the application of the Plaintiff based upon same being without merit at this time; (5) Pursuant to DRL §237, awarding reasonable counsel fees for the necessity of the Defendant having to oppose the Plaintiff’s application; and (6) Granting to the Defendant such other and further relief as the Court may deem just, fit, and proper herein. BACKGROUND The Plaintiff and the Defendant (the “parties”) were married on October 5, 2003 in Bellport, New York, and there are two unemancipated children born of the marriage. During the marriage, the parties resided in Sudbury, Massachusetts. In or about 2017, the Plaintiff commenced an action for divorce in the Middlesex Probate and Family Court of the State of Massachusetts. The action was resolved by a Divorce Agreement dated June 30, 2017 (the “Agreement”). The parties were divorced pursuant to a Judgment of Divorce dated June 30, 2017 (the “Judgment”). Except for Exhibits E, F, and G of the Agreement, the Agreement was incorporated and merged with the Judgment. Exhibits E, F, and G were incorporated, but not merged, with the Judgment. Exhibit A of the Agreement addresses the Defendant’s “unallocated support” obligations. Exhibit A, 2 directs that the Defendant shall pay to the Plaintiff the sum of $3,029.00 per week as “base unallocated support”. Exhibit A, 3 provides for “supplemental unallocated support” and directs that [c]ommencing July 21, 2017, the Husband shall pay to the Wife as additional supplemental unallocated support the following percentage of his gross earned income from his employment beyond his annual base salary: income paid as cash in the form of a bonus (or bonus equivalent), commission (or commission equivalent) or income derived and received from the equities from his employer such as stock options, restricted share units, performance shares, deferred equity, employee stock ownership plans, employee stock plans reported on his W-2, excluding his base salary. The Supplemental unallocated support is subject to paragraph 4, below and shall not include earned income as defined herein that is taxed in a particular year but not actually paid out to the Husband. The parties recognize that the Husband will recognize income when restricted shares vest and stock options are exercised and these events will be reported on his paystubs and W-2 forms. However, he may still be subject to restrictions that either do not enable him to transfer shares to the Wife or liquidate those shares to enable him to pay the Wife her share of the alimony. Thus, the parties agree that the Husband shall not be obligated to make the payment until he is able to do so from this form of income. The supplemental unallocated support shall be paid, if as and when received as follows: i.33% of any gross Supplemental Earned Income from $0 to $500,000; ii. 30% of any gross Supplemental Earned Income from $500,001 to $1,000,000; iii. 20% of any gross Supplemental Earned income from $1,000,001 to $2,000,000; iv. 10% of any gross Supplemental Earned Income from $2,000,001 to $5,000,000 from XXXXX, Inc., only; v. 0% of any gross Supplemental Earned Income in excess of $5,000,000 from XXXXX, Inc. or 0% of any gross Supplemental Earned Income in excess of $2,000,000 from any other employer. The Husband shall pay to the Wife her share of the Supplemental Earned Income within fourteen (14) days of receipt of said income. Payment shall be accompanied with a copy of the Husband’s pay stub, grant summary and any other documents reasonably necessary to verify said gross Supplemental Earned Income. Exhibit A, 8 further provides that “[n]o later than March 30, 2018 and March 30 of each year until the Husband no longer has a support obligation to the Wife, the parties shall exchange the following documents: Forms W-2, 1099, K-1, and year-end paystubs.” Exhibit B addresses child support. Exhibit B, 1 provides that [i]n light of the unallocated family support the Husband is paying to the Wife, the Husband shall not have a child support obligation at this time. The issue of child support may be reviewable upon a material change in circumstance including but not limited to the amount of support paid by the Husband The Judgment and the Agreement were authenticated by the Middlesex Probate and Family Court of the State of Massachusetts on April 1, 2021. Subsequently, on April 8, 2021, the Plaintiff filed the authenticated Judgment and Agreement with the Nassau County Clerk’s Office. The Plaintiff filed the instant Order to Show Cause on April 15, 2021. The Defendant, through his counsel, filed a Notice of Appearance on May 4, 2021. The Defendant filed a Notice of Cross-Motion on May 11, 2021, and the Plaintiff filed opposition papers on May 27, 2021. The Defendant filed a Reply on June 14, 2021. Mot. Seq. 01 and Mot. Seq. 02 were fully submitted on June 22, 2021. DISCUSSION SUBJECT MATTER JURISDICTION As a preliminary matter, this Court must determine if, and to what extent, the Massachusetts Judgment, which incorporates and merges with the Agreement, is enforceable in New York. The Plaintiff argues that, pursuant to 28 USC §1738, the “judgment of a state court shall have the same credit, validity, and effect, in every other court of the United States, which it has in the state where it was pronounced.” The Plaintiff further argues that here, the Judgment is considered a “foreign judgment” under NY CPLR §5401. According to the Plaintiff, pursuant to NY CPLR §5402, if filed in New York within ninety (90) days of its authentication, the Judgment may be enforced by this Court in the same manner as though it were a domestic judgment. The Plaintiff argues that because she filed the authenticated Judgment with the Nassau County Clerk’s Office within this ninety (90) day period, it must be recognized and enforced by this Court, and, as such, the Defendant must be ordered to comply with these prior court orders. The Defendant opposes this application and argues, inter alia, that this Court does not have subject matter jurisdiction to hear this application. The Defendant, through his counsel, argues that 28 USC §1738 has two sections: (1) §1738A, or the Full Faith and Credit Given to Child Custody Determinations, and (2) §1738B, or the Full Faith and Credit for Child Support Orders Act (FFCCSOA). The Defendant further argues that §1738A does not apply to the instant matter as custody is not raised or at issue herein. Additionally, the Defendant argues that because the Agreement provides for “unallocated support” and specifically excludes child support, §1738B does not apply either. Instead, the Defendant’s counsel argues that the support provided for in the Agreement should be considered as spousal support and, as such, UIFSA, FCA §580-211(b) applies. According to the Defendant, this statute specifically prohibits a tribunal of this state to modify a spousal-support order issued by a tribunal of another state having “continuing, exclusive jurisdiction over that order under the law of that state.” The Defendant argues that Massachusetts still has continuing, exclusive jurisdiction over the Judgment and the Agreement and thus, this Court cannot modify it. “The United States Supreme Court has held that full faith and credit must be given to a sister State judgment if that judgment is definite and certain and for a specific amount.” Barber v. Barber, 62 U.S. 582, 21 (1859). The Full Faith and Credit Clause requires “recognition of [a] foreign judgment as proof of the prior out-of-State litigation and gives it res judicata effect, thus avoiding relitigation of the issues in one State which have already been decided in another.” Fleet Business Credit, LLC. v. Michael P. Costelloe, Inc., 856 N.Y.S.2d 436 (2d Dept. 2008) (citing Matter of Farmland Dairies v. Barber, 65 NY2d 51, 55 [1985]). New York courts generally afford recognition to foreign judgments under the doctrine of comity, which is the equivalent of full faith and credit given by the Courts to judgments of our sister States. See Greschler v. Greschler, 51 NY2d 368 (1980). In fact, Article 54 of the New York CPLR “provides for an expedited method for enforcing a sister State judgment by filing a copy of the judgment with the County Clerk within the state.” New Century Fin. Servs., Inc. v. Shaheen, 906 N.Y.S.2d 781 (2009). Section 5401 defines a foreign judgment as “any judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in this state, except one obtained by default in appearance, or by a confession of judgment.” NY CPLR §5401. Exhibit B of the Agreement specifically excludes child support, providing that “in light of the unallocated family support the Husband is paying to the Wife, the Husband shall not have a child support obligation at this time”. Exhibit B, 1 (emphasis added). Additionally, the custody portion of the Agreement is not at issue here. While this Court agrees with the Defendant’s notion that given these facts, neither 28 USC §1738A nor 28 USC §1738B applies, the Defendant fails to recognize that these sections of the statute are subparts of the overarching statute, 28 USC §1738, which is much less specific. Generally, 28 USC §1738 provides that The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed…. Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken. (emphasis added). The Judgment, which incorporated the Agreement, was properly authenticated by the Middlesex Probate and Family Court of the State of Massachusetts on April 1, 2021 in accordance with this statute. Furthermore, the Judgment was not obtained by a default in appearance or by a confession of judgment and thus, is considered a foreign judgment under NY CPLR §5401. Accordingly, the Massachusetts Order at issue here is entitled to full faith and credit by this Court. The Defendant’s further argument that NY FCA §580-211(b) applies and thus, prohibits this Court from modifying the Judgment is unavailing. That statute applies to a modification of a spousal support order. Here, the Plaintiff is seeking to enforce the Massachusetts Order, not modify it. Additionally, rather than being considered a spousal support order, the “unallocated support” described in the Agreement is more appropriately classified as a “support order” consistent with NY FCA §580-102 (28). Under this statute, a “support order” is defined as a judgment, decree, order, decision or directive, whether temporary, final or subject to modification, issued in a state or foreign country for the benefit of a child, a spouse or a former spouse, which provides for monetary support, health care, arrearages, retroactive support or reimbursement for financial assistance provided to an individual obligee in place of child support. The term may include related costs and fees, interest, income withholding, automatic adjustment, reasonable attorney’s fees and other relief. NY FCA §580-102 (28) (emphasis added). Furthermore, NY FCA §580-601 provides that “a support order…issued in another state or a foreign support order may be registered in this state for enforcement.” Once registered, which procedure is provided for in NY FCA §580-602, NY FCA §580-603 (b) provides that “[a] registered support order issued in another state or a foreign country is enforceable in the same manner and is subject to the same procedures as an order issued by a tribunal of this state.” (emphasis added). Here, the Agreement specifically excludes child support “in light of” the unallocated support and, as such, clearly falls under the definition of a “support order” in NY FCA §580-102. Accordingly, the Judgment, which incorporates the Agreement, is entitled to be registered and enforced in this State in the same manner as a domestic judgment. SERVICE The Defendant seeks an Order, pursuant to GBL §11, dismissing the Plaintiff’s Order to Show Cause based upon improper service and/or defective proof of service. The Defendant, through his counsel, argues that although he was personally served in Colorado, the state in which he resides, the Plaintiff was required to serve him pursuant to New York laws, citing NY CPLR §313. The Defendant argues that although Colorado law may allow for service of process on a Sunday, New York law prohibits this, citing NY GBL §11. According to the Defendant, he was served on April 25, 2021, which was a Sunday. The Defendant argues that as such, “the proceeding was not properly commenced, nor did the Court obtain in personam jurisdiction over [the Defendant], if the proper nexus to exercise it existed.” Defendant further argues that the Order to Show Cause should be dismissed as “New York also lacks jurisdiction over [the Defendant] as a non-resident of this state.” In her opposition papers, the Plaintiff, through her counsel, argues that the Defendant voluntarily appeared in this matter when his counsel filed a Notice of Appearance with the Nassau County Clerk’s Office, citing NY CPLR §320. The Plaintiff further argues that because this Notice of Appearance did not contest this Court’s jurisdiction over the Defendant, he waived any personal jurisdiction defenses. The Plaintiff’s counsel argues that ” [a]n appearance will operate to waive objections to the court’s personal jurisdiction unless an objection to jurisdiction under CPLR §3211(a)(8) is asserted by motion or in the answer as provided in rule 3211.” According to the Plaintiff’s counsel, the Defendant’s Cross-Motion is improper as the “Defendant failed to demand relief, as he should have, under any of the provisions of CPLR §3211.” Rather, the Plaintiff’s counsel argues that pursuant to NY FCA §580-201, the Defendant has consented to this Court’s jurisdiction and thus, the Judgment and Agreement can be enforced against him. Before addressing the issue of personal jurisdiction over the Defendant, this Court must first determine whether service was proper. NY CPLR §313, entitled “Service without the state giving personal jurisdiction”, provides that [a] person domiciled in the state or subject to the jurisdiction of the courts of the state under section 301 or 302, or his executor or administrator, may be served with the summons without the state, in the same manner as service is made within the state, by any person authorized to make service within the state who is a resident of the state or by any person authorized to make service by the laws of the state, territory, possession or country in which service is made or by any duly qualified attorney, solicitor, barrister, or equivalent in such jurisdiction. (emphasis added). Furthermore, NY GBL §11, entitled “Serving civil process on Sunday”, provides that All service or execution of legal process, of any kind whatever, on the first day of the week is prohibited, except in criminal proceedings or where service or execution is specially authorized by statute. Service or execution of any process upon said day except as herein permitted is absolutely void for any and every purpose whatsoever. (emphasis added). Here, the Defendant is a non-resident and is domiciled in Colorado. According to an Amended Affidavit of Service dated May 14, 2021, the Defendant was personally served with “the Order to Show Cause and accompanying papers” in Douglas County, Colorado on April 25, 2021. This Court takes judicial notice of the fact that April 25, 2021 was a Sunday. Although unclear whether Sunday service is permitted in Colorado, under NY CPLR §313, the Plaintiff was required to serve the Defendant in accordance with New York State laws. NY GBL §11 is clear that service of any process on a Sunday is “absolutely void for any and every purpose whatsoever.” Thus, the service at issue here is defective. Accordingly, the Defendant’s application seeking an Order dismissing the Plaintiff’s Order to Show Cause based upon improper service and/or defective proof of service is GRANTED. Even if service was proper, it is unclear whether a New York Court would have personal jurisdiction over the Defendant, who resides in Colorado. Although the Defendant did not specifically cite NY CPLR §3211 in his cross-motion, he did contest personal jurisdiction in a timely manner in compliance with NY CPLR §3211 (e). However, since service of Mot. Seq. 01 upon the Defendant was defective, it is not necessary for the Court to further address this issue. COUNSEL FEES Considering the decision herein dismissing the Plaintiff’s Order to Show Cause, this Court cannot address her application for counsel fees. The Defendant, however, also seeks an order, pursuant to NY DRL §237, awarding reasonable counsel fees. The Defendant argues that the Plaintiff caused “much work to be done herein based upon her bringing on an application in the wrong jurisdiction”, and thus, she should be responsible for paying the Defendant’s legal fees, pointing to case law to support his position. In the case law cited, Stern v. Stern, 67 AD2d 253 (1st Dept. 1979), the Appellate Division confirmed an award of counsel fees, finding that “[t]he husband’s obstinacy throughout the pendency of this proceeding compelled his wife to deplete by at least 60% a stock portfolio of over $ 100,000.” The Court went on to list numerous actions of the husband throughout the pendency of the divorce litigation, “which caused the wife’s counsel fees to escalate on several occasions.” Stern can clearly be distinguished from the case at hand. Here, there is no evidence of a history of obstructionist conduct by the Plaintiff, nor is there any evidence that litigating this proceeding caused the Defendant to deplete his assets, as was the case in Stern. Although the Plaintiff’s applications were dismissed due to defective service, it appears that there may be on-going breaches of the parties Agreement, which necessitated court intervention in the first place. If this is the case, 13 of the Agreement directs that “[i]f either party commits a breach of any of the provisions of this Agreement and legal action shall be reasonably necessary to enforce such provisions…then the breaching party shall be liable for all court costs and reasonable counsel fees incurred by the other….” Additionally, the Defendant is clearly the monied spouse as can be seen by his payment of $515,000.00 to the Plaintiff during the pendency of this motion practice for “a Supplemental Support payment for 2021 earnings.” Exhibit 8. Given the facts and circumstances discussed herein, an award of counsel fees is unwarranted. Accordingly, the branch of the Defendant’s application seeking an Order, pursuant to NY DRL §237, awarding reasonable counsel fees, is DENIED. Any other relief sought herein and not specifically ruled upon is denied. This constitutes the Decision and Order of the Court. Dated: August 17, 2021
