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BLOUIN v. DEMBITZ

March 30, 1973

Joseph E. BLOUIN, Jr. and Fred Griese, Plaintiffs,
v.
Hon. Nanette DEMBITZ et al., Defendants


Brieant, District Judge.


The opinion of the court was delivered by: BRIEANT

MEMORANDUM AND ORDER

BRIEANT, District Judge.

 Plaintiffs, errant husbands, seek by this action, instituted pursuant to 42 U.S.C. § 1983, to test the constitutionality of New York statutes, and judicial procedures developed thereunder by defendant Family Court Judges of the State of New York, and their clerks and employees. *fn1"

 They seek damages, and preliminary and final injunctive relief against defendants, preventing them from "effecting or causing to be effected the arrest or incarceration of Plaintiffs, compelling Plaintiffs or causing Plaintiffs to be compelled to involuntarily appear before the Family Court . . ., threatening Plaintiffs, or causing Plaintiffs to be threatened with arrest or incarceration, and subjecting Plaintiffs or causing Plaintiffs to be subjected to the deprivation of rights, privileges or immunities secured by the Constitution and laws." (Amended Complaint, PIII.)

 Plaintiff Blouin is a resident of New Jersey who has permanent employment in New York City. Plaintiff Griese describes himself in his complaint as a citizen of New York who is temporarily residing in New Jersey, but employed in New York City. Blouin's ex wife, and Griese's wife, who seek support money from them through the New York Family Court, are not parties here. They reside, respectively, in Arizona, and in Ontario, Canada.

 Hearings were held on November 2, 1972, December 6, 1972 and again on March 2, 1973. The conduct complained of was undertaken by the Family Court in the regular course of its judicial proceedings to adjudicate the support rights of non-resident dependents of plaintiffs, pursuant to the Uniform Support of Dependents Act. [New York Family Court Act, § 411, New York Domestic Relations Law, Article 3-A, McKinney's Consol. Laws, c. 14] Such uniform reciprocal legislation is in effect in New York, Arizona and the province of Ontario, Canada, and permits a destitute dependent in one jurisdiction to apply there for a support order, to be adjudicated and enforced in another reciprocal jurisdiction where the absconding husband or father is found.

 The factual situation affecting the two separate plaintiffs differs in no material respect, except that Blouin's former wife initiated her application for support in Arizona. Griese's wife and infant issue are, apparently, sojourning in Canada and have sought the assistance of a competent court in the Province of Ontario.

 The New York statute [§ 31(1) Domestic Relations Law] includes any province or territory of Canada as a foreign jurisdiction in which support proceedings may be commenced for adjudication and enforcement by the New York Family Court where respondent is found in New York.

 We dispose immediately of plaintiff Griese's suggestion that permitting a Canadian support petition to be the subject of New York proceedings for adjudication of rights under the Uniform Act, violates the constitutional inhibition against a state entering into treaties with a foreign country. (Amended Complaint, PXXXI-XXXII.)

 Such a statute having reciprocal effect [New York Domestic Relations Law, Article 3-A, and particularly § 31 thereof], which grants to citizens of a foreign jurisdiction the same procedural remedies in New York courts as the foreign state grants to our citizens is not a compact with a foreign country, and does not violate Article II, Section 2(2) of the Constitution, or any treaty or other paramount federal law. Clark v. Allen, 331 U.S. 503, 516-517, 67 S. Ct. 1431, 91 L. Ed. 1633 (1947); the statute does not, as applied in this case, disrupt or embarrass our relations with other countries. See Gorun v. Fall, 287 F. Supp. 725, 728 (D. Montana 1968), aff'd. 393 U.S. 398, 89 S. Ct. 678, 21 L. Ed. 2d 628 (1968); Zschernig v. Miller, 389 U.S. 429, 88 S. Ct. 664, 19 L. Ed. 2d 683 (1968).

 On the coming in of verified petitions from the Provincial Court, Family Division of the County of Middlesex, Province of Ontario in the case of Griese, and the Maricopa County Supreme Court of Arizona, in the case of Blouin, defendant Family Court Judges and their servants and agents proceeded in the same manner as that Court does regularly in such cases; a summons was duly issued to each respondent [plaintiffs, here] requiring him to appear personally before the Family Court.

 Such summons and the service thereof, is required by § 427, Family Court Act, which reads as follows:

 
"Service of summons
 
(a) Service of a summons and petition shall be made by delivery of a true copy thereof to the person summoned at least three days before the time stated therein for appearance. If so requested by the respondent or by a parent or other person legally responsible for his care, the court shall not proceed with the hearing or proceeding earlier than seven days after such service.
 
(b) If after reasonable effort, personal service is not made, the court may at any stage in the proceedings make an order providing for substituted service in the manner provided for ...

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