NOTICE: PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE OF MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST. The following papers numbered 1 to 5 were read on this motion: Papers: No(s). Exhibits Notice of Motion by Order to Show Cause 1 Affidavit of L.R. in Support of Motion 2 Affirmation of Richard Min, Esq. in Support of Motion 3 A-E Affirmation of Karen D. Steinberg, Esq. in Opposition to Motion 4 A-C Affirmation of Richard Min, Esq. in Reply 5 DECISION AND ORDER ON MOTION Petitioner R.B. (“Petitioner”) seeks to hold Respondent L.R. (“Respondent”) in Contempt of Orders of the Superior Court of New Jersey dated October 18, 2021 and March 2022 (“Consent Order”) for alleged violations of Petitioner’s access rights that occurred from December 2021 through July 2022. With the instant motion, Respondent seeks to dismiss Petitioner’s petitions by arguing that no valid order existed in New York at the time of the alleged violations that would entitle Petitioner to pursue contempt. Petitioner opposes the motion, but fails to directly address Respondent’s argument that no valid order existed in New York at the time of the alleged violations. For the reasons set forth herein, Respondent’s motion is granted, and Petitioner’s petitions are dismissed in their entirety. BACKGROUND AND ARGUMENTS Petitioner and Respondent are the parents of two children, C.P.R.B. (d.o.b. XX/XX/XX) and K.R.B. (d.o.b. XX/XX/XX). After protracted litigation, the Superior Court of New Jersey for Middlesex County entered a Consent Order on October 18, 2021, that set forth the terms of Petitioner and Respondent’s exercise of custody and visitation with respect to their children. Notably, the Consent Order was not registered in the New York County Family Court until August 2022 (see Exhibit A Affirmation of Richard Min, Esq. in Support of Motion). Petitioner filed the instant petitions on August 11, 2022. Since the Consent Order was not registered in New York County Family Court until August 2022, Respondent argues that Respondent cannot be held in contempt by this court for any perceived violations prior to registration of the Consent Order in New York. In opposition, Petitioner argues that New York has jurisdiction to address the instant petitions by citing to the provisions of Domestic Relations Law (“DRL”) §77-b.1, which states as follows: 1. A court of this state shall recognize and enforce a child custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with this article or the determination was made under factual circumstances meeting the jurisdictional standards of this article and the determination has not been modified in accordance with this article; provided, however, that recognition and enforcement of the determination would not violate subdivision one-c of section two hundred forty of this chapter or section one thousand eighty-five of the family court act. (see DRL §77-b.1). In reply, Respondent argues that DRL §77-b.1 only applies where a child custody order issued in another state has been registered in New York. Accordingly, Respondent reiterates that Petitioner’s petitions are not premised on the existence of a valid order, and therefore must be dismissed. DISCUSSION On a motion to dismiss pursuant to CPLR §3211(a)(7), a court’s role is ordinarily limited to determining whether the complaint states a cause of action (Frank v. DaimlerChrysler Corp., 292 AD2d 118 [1st Dept 2002]). In other words, the determination is not whether the party has artfully drafted the pleading, but whether deeming the pleading to allege whatever can be reasonably implied from its statements, a cause of action can be sustained (see Stendig, Inc. v. Thom Rock Realty Co., 163 AD2d 46 [1st Dept 1990]; Leviton Manufacturing Co., Inc. v. Blumberg, 242 AD2d 205 [1st Dept 1997]). When considering a motion to dismiss for failure to state a cause of action, the pleadings must be liberally construed (see CPLR §3026). The court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit into any cognizable legal theory” (Leon v. Martinez, 84 NY2d 83, 87-88 [1994]). The motion should be granted where the pleading fails to set forth a cause of action cognizable at law (McGill v. Parker, 179 AD2d 98 [1st Dept 1992]). “Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” (Cortlandt Street Recovery Corp. v. Bonderman, 31 NY3d 30, 38 [2018]). While DRL §77-b.1 sets forth that New York courts “shall recognize and enforce a child custody determination of a court of another state,” this provision has been interpreted to mean that courts within this State “must recognize and enforce a registered child custody order issued in another state” (see Paul J.J. v. Heather J.J., 184 AD3d 956, 959 [3d Dept 2020]; see also Spencer v. Spencer, 159 AD3d 174 [2d Dept 2018][holding that enforcement through contempt is available as a remedy after entry of a judgment]; Eaton v. Eaton, 98 AD3d 1239 [4th Dept 2012][holding that trial court erred in finding husband in contempt of court where there was no order in effect when the court found him in contempt and the judgment of divorce incorporating the parties' settlement was not entered until after the contempt finding]; Kolmer v. Kolmer, 13 Misc.2d 313 (Sup. Ct.) aff’d 6 AD2d 1001 [1958][holding that where parties entered into a stipulation and no order of the Supreme Court was subsequently entered, a party could not be held in contempt for failing to make payments to the other party in accordance with their stipulation]). As such, New York courts have consistently held that a foreign order cannot be enforced where such an order has not been registered within the State (see Martin v. Martin, 127 AD2d 266, 269 [2d Dept 1987][holding that the Family Court did not have the power to mandate payment of arrears accrued under a California child support order made in connection with a divorce judgement where the divorce judgment had not been registered in New York]; see also Bowers v. Bowers, 118 Misc.3d 144 [Fam. Ct. 1983][explaining that in cases involving foreign support orders, the Family Court is without jurisdiction to enforce payment of arrears unless the foreign support order has been registered pursuant to the DRL]). And while DRL §77-b.1 read in conjunction with DRL§77-d.1 contemplates that a court order of another state may be registered in New York with a “simultaneous request for enforcement,” that provision only appears to apply to prospective enforcement of ongoing violations rather than retroactive enforcement of past violations committed prior to registration of another state’s order. Applying these principles to the case at bar, it is axiomatic that Petitioner had not registered the Consent Order in New York at the time of the alleged violations, thereby rendering DRL §77- b.1 inapplicable to the allegations contained within Petitioner’s petitions. Indeed, this court does not have the jurisdictional authority to hold Respondent in contempt for purported violations that occurred from December 2021 through July 2022 when the Consent Order was not registered in New York until August 2022. To be sure, a finding of civil contempt is only appropriate where there is a purported violation of “a lawful court order clearly expressing an unequivocal mandate was in effect” (see Kawar v. Kawar, 231 AD2d 681, 682 [2d Dept 1996]). Here, it cannot be said that an “unequivocal mandate was in effect” within New York because the Consent Order at issue was not registered in New York at the time of the alleged violations. Petitioner fails to address this deficiency, and does not cite any authority in Petitioner’s papers standing for the proposition that this court is able to address purported violations that occurred prior to the Consent Order being registered in New York. Petitioner’s dependance on El-Dehdan v. El-Dehdan, 26 NY3d 19 (2015) is erroneous since the findings in that case were premised on the existence of a lawful court order — namely, an unequivocal order directing the defendant to deposit $950,000 with the plaintiff’s attorney. Unlike the order in El-Dehdan, the Consent Order here did not constitute a lawful order in New York until August 2022, when it was registered in New York. In the absence of reference to any authorities contrary to those cited by Respondent, Petitioner is unable to maintain a viable cause of action even when afforded the benefit of every favorable inference (McGill, 179 AD2d 98, supra). The court has considered Respondent’s remaining argument that dismissal is also appropriate under paragraph 61 of the Consent Order insofar as that provision maintains that New Jersey was to retain jurisdiction for at least six months, and finds it unavailing. Notwithstanding, the mere fact that the Consent Order was not registered in New York prior to the alleged violations strips this court of the authority to proceed with Petitioner’s pending petitions. Accordingly, it is hereby ORDERED that the motion to dismiss is granted and Docket Nos. V-05690-22/22A and V-05691-22/22A are dismissed in their entirety for failure to state a viable cause of action. This constitutes the order and decision of the court. Dated: January 26, 2023
