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BRENHOUSE v. BLOCH

July 13, 1976;

MARLENE BRENHOUSE, Plaintiff,
v.
FRED BLOCH, Defendant


Knapp, D.J.


The opinion of the court was delivered by: KNAPP

KNAPP, D. J.

Plaintiff has brought this motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure claiming that she is entitled to judgment in the amount of $28,240.43 as a matter of law on the ground that defendant breached a separation agreement pursuant to which he was obligated to pay certain sums for alimony and child support. Defendant responded that he had not breached the separation agreement and further, that this court does not have subject matter jurisdiction since plaintiff's claim involves matters of family law more properly litigated in state court.

 We referred the motion to Magistrate Schreiber for the purpose of exploring whether a settlement could be achieved in this family dispute. Having been unsuccessful in effecting a settlement, Magistrate Schreiber, in a thorough and well-reasoned memorandum, recommended that we abstain from asserting our jurisdiction because we would necessarily have to become involved in questions of child custody and visitation rights, which federal courts traditionally have refrained from considering. Plaintiff replied with the contention that this action is merely for breach of contract and that questions of family status need not be considered.

 We accept plaintiff's position so far as to consider her motion for summary judgment with close attention, on the theory that if that motion could be granted then the reasons prompting our abstention would be inapplicable. We have found, however, that defendant's affidavit raises substantial issues of material fact as to whether he breached the separation agreement, and as a result we are constrained to deny plaintiff's motion.

 The material issues of fact may briefly be stated as follows: Defendant concedes that the separation agreement provided that plaintiff have primary custody of the three children (whose age is not disclosed in the papers, although it does appear that one, having been Bar Mitzvahed, is at least 13); that the visit two of the children made to him in July of 1973 should have terminated on August 1, 1973; and that the visit did not then terminate, but that the two children stayed with him rather than return to their mother, and that as a result he reduced the amount of the monthly child support payments he sent to the plaintiff. Defendant contends, however, that the children's failure to return was their own decision and not his. Defendant further contends that he is now powerless to return the children in that the Arizona court (which concededly has power over their person) has directed that he retain custody over them. *fn1" There is also a dispute between the parties as to whether defendant is entitled to credit for certain money given by others to one of the children and withheld by the plaintiff.

 There may or may not be merit in defendant's contentions, but they certainly raise issues of fact so that we are unable to grant summary judgment. Heyman v. Commerce and Industry Insurance Co. (2d Cir. 1975) 524 F.2d 1317, Judge v. City of Buffalo (2d Cir. 1975) 524 F.2d 1321. Moreover, a mere statement of these issues makes evident that any attempts to resolve them would involve us in the very type of controversy concerning family status from which we believe we should abstain.

 Accordingly, we adopt the Magistrate's recommendation on the basis of the analysis set forth in his memorandum of June 2, 1976, a copy of which is annexed hereto and made a part hereof Plaintiff's motion for summary judgment is denied, and defendant's motion to dismiss is granted on the ground that this court is without subject matter jurisdiction.

 SO ORDERED.

 WHITMAN KNAPP, U.S.D.J.

 MAGISTRATE'S REPORT and RECOMMENDATION

 In this action plaintiff sues for breach of a separation agreement and seeks damages in the sum of twenty-eight thousand two hundred forty and 43/100 dollars ($28,240.43) for arrears in alimony and child support pursuant to the terms of the agreement.

 Plaintiff and defendant were married on June 9, 1957 in New York. On January 28, 1970, the parties entered into a separation agreement in New York with provisions for alimony and child support. Plaintiff at that time had custody of the three infant children. On February 11, 1970, the parties were divorced pursuant to a decree incorporating the separation agreement. A subsequent agreement was executed by the parties on January 10, 1973. This agreement modified downward the alimony and child support provisions of the first agreement. The second agreement provided that, should the defendant breach said agreement, at the election of the plaintiff the second agreement would be considered null and void and the original agreement of January 28, 1970 would be automatically reinstated in full force and effect.

 Plaintiff contends that several provisions of this second agreement were breached by the defendant and that plaintiff elected by letter to defendant on July 29, 1973 to have the first agreement reinstated. Plaintiff alleges that defendant breached the agreement in July, 1973 when he detained two of the children in Arizona. Thereafter, defendant obtained an order entered September 4, 1973, from the Superior Court of Arizona granting custody of the two children to defendant and suspending the child support provisions of the agreement for the two sons. For the month of August, 1973, the defendant paid only one hundred dollars ($100); while the modification agreement required the payment of $300 per month.

 Plaintiff contends that, upon the exercise of her option, the first agreement was re-instated and that, therefore, defendant is liable for the larger amounts specified in the first agreement. Alternatively, plaintiff argues that, should this Court find no breach in August 1973, the defendant breached the agreement in May 1974. At that time, defendant commenced paying $120 for support of the third child (who ...


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