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October 6, 1986

THE SUPREME COURT OF THE STATE OF NEW YORK; BARBARA L. MARTIN; JOHN C. DILLION, Sheriff of Onondaga County; ELAINE LYTEL, Clerk of Onondaga County, Defendants

The opinion of the court was delivered by: MUNSON



 Plaintiff Ernest Franklin Martin, Jr., and his wife, Karen Katz, by their attorney, filed a complaint under 42 U.S.C. § 1983 asserting that specific state actors and Mr. Martin's ex-wife conspired to deprive them of property without due process of law essentially by Mrs. Martin's attempts to execute on a judgment obtained against Mr. Martin in Missouri and filed in New York. After oral arguments on defendants' motions to dismiss, plaintiff's attorney was admonished that the complaint appeared to be without foundation in the law, but was granted leave to file an amended complaint. The amended complaint filed was virtually identical to the original complaint; the only changes made were: deletion of State Supreme Court Justice Murphy as a named defendant and substitution of the Supreme Court of the State of New York in his stead and the reduction of monetary damages sought.

 The defendants' motions to dismiss the plaintiffs' amended complaint under Rule 12(b)(6), Fed. R. Civ. P., were granted and defendant Martin's motion for sanctions was granted. The claim against defendant Martin is frivolous, without foundation in the law and vexatious and therefore warrants an award of attorneys fees to defendant Martin under 42 U.S.C. § 1988, and the imposition of sanctions against plaintiffs and plaintiffs' attorneys under Rule 11, Fed. R. Civ. P.


 Plaintiff Mr. Martin and defendant Mrs. Martin were divorced on March 12, 1984 by decree issued in the Circuit Court of St. Louis County, Missouri. Mr. Martin was the original petitioning party. The divorce decree incorporated the separation agreement executed between the parties providing for periodic support payments by Mr. Martin to Mrs. Martin for the support of their two children. *fn1" Mr. Martin married the plaintiff Karen Katz on March 17, 1984. Amended Complaint [P]6. Eighteen months after the divorce decree Mrs. Martin returned to Missouri state court seeking to obtain a judgment for arrears in child support payments. Mrs. Martin submitted an affidavit stating that the arrears accumulated up to that time amounted to $16,825. She was granted a judgment in that amount by the Missouri state court on November 13, 1985. Because at the time Mrs. Martin obtained the Missouri judgment her ex-husband, Mr. Martin, was living in New York, Mrs. Martin by her attorney in this action, filed the out-of-state judgment in the Clerk's Office of Onondaga County, New York under § 5402, N.Y. Civ. Prac. Law. *fn2" An income execution was issued to Mr. Martin's employer, Syracuse University, and a restraining notice to the Syracuse University Credit Union was issued on Mr. Martin's account.

 requesting the court to (1) stay and modify the income execution, (2) vacate the Missouri arrears judgment filed in the Onondaga County Clerk's office, (3) stay and vacate the property execution against his credit union funds, and (4) modify his support obligations based on a change in circumstances. Supreme Court Justice Thomas J. Murphy initially granted petitioner's request for a stay of enforcement of the judgment. Following arguments on Mr. Martin's petition, Justice Murphy ordered that Mr. Martin's application to vacate the judgment be held in abeyance for sixty days to permit him to initiate proceedings in Missouri to vacate or modify the judgment issued in Missouri state court. Justice Murphy's order further provided that if Mr. Martin failed to commence proceedings in Missouri within 60 days, Mrs. Martin would be permitted, on notice, to apply for an order denying Mr. Martin's various requests for relief in the New York Supreme Court and vacating the stay of enforcement of the judgment.

 Mr. Martin did not commence a proceeding in Missouri during the 60-day period, but rather filed a petition in Family Court of Onondaga County, seeking a reduction of the weekly child support directed by the Missouri court and a vacatur of the arrears accrued under the Missouri court decree. In addition, Mr. Martin and his new wife commenced the instant action in this court against Justice Murphy, the Sheriff and Clerk of Onondaga County, and Barbara L. Martin, Mr. Martin's ex-wife. At the request of Mr. Martin following his commencement of a lawsuit in this court in which Justice Murphy was named as a defendant, Justice Murphy recused himself and the Supreme Court action was heard by Justice Hurlbutt. After more than 60 days had passed Mrs. Martin moved in Supreme Court to vacate the stay of enforcement of the judgment filed in the county Clerk's office and to permit the execution on the judgment against Mr. Martin. Justice Hurlbutt granted Mrs. Martin's motion and dismissed Mr. Martin's petition in Supreme Court for failure to comply with Justice Murphy's direction that he proceed in Missouri court to set aside or modify the Missouri judgment.


 Plaintiffs' complaint asserts claims under 42 U.S.C. § 1983, the fourteenth amendment, and 15 U.S.C. § 1673 (limiting the amount of income subject to garnishment). The complaint asserts that plaintiffs were not given notice prior to the entry of judgment in Missouri state court and that the New York Supreme Court's failure to provide a forum in New York for challenging the out-of-state judgment violates due process of law.

 In the first cause of action, plaintiffs assert that all of the defendants, individually, collectively and/or via a conspiracy, acted to "deny plaintiffs their right of and the use of their property" and seek an injunction against such deprivation.

 Deprivation of property, per se, is not protected by the fourteenth amendment. Rather, it is only when state actors act so as to deprive a person of property without due process of law that the due process clause of the fourteenth amendment may be invoked to seek judicial redress under 42 U.S.C. § 1983.

 In the case before the court, the Missouri court, as part of divorce decree, ordered Mr. Martin to make specified payments. The divorce proceeding, initiated by Mr. Martin, was conducted with appearances by both parties; it would seem to be beyond dispute that the Missouri court had in personam jurisdiction over Mr. Martin. Under Missouri law, past due amounts of child support encompassed in a divorce decree become judgments. Mackey v. Mackey and Associates, Inc., 677 S.W.2d 349 (Mo. App. 1984); Barbara v. Charles, 632 S.W.2d 92 (Mo. App. 1982). By statute, court decrees respecting maintenance or support are modifiable only as to future installments, Mo. Ann. Stat. § 452.370 subd. 1 (Vernon 1986). *fn3" After Mr. Martin had failed to make payments as ordered, Mrs. Martin returned to the Missouri court and submitted an affidavit attesting to the arrears. Upon this affidavit, and presumably, construing the complaint in the light most favorable to plaintiffs, without notice to Mr. Martin, the Circuit Court of St. Louis County entered judgment for the past due amount against Mr. Martin.

 Generally due process of law encompasses notice to a debtor prior to entry of judgment on the debt. See Fuentes v. Shevin, 407 U.S. 67, 32 L. Ed. 2d 556, 92 S. Ct. 1983 (1972). However the requirements of due process of law are not rigid, Morrissey v. Brewer, 408 U.S. 471, 481, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972); child support awards upon divorce decrees need not be regarded under the law in the same light as ordinary commercial debts. *fn4" States have a strong interest in assuring that parents meet their support obligations as reflected by numerous states' enactment of statutes explicitly designed to aid collection efforts of one parent against another parent who neglects court-ordered support obligations. Domestic relations is an area into which federal courts do not generally intrude. This court would be extremely reluctant to dismantle the statutory processes for collection of past-due support payments previously ordered by a state court in a divorce proceeding in which both parties appeared and the jurisdiction of the court which issued the divorce decree is uncontested. There is no due process problem in Missouri's treating past due installments as a judgment debt thereby allowing for the entry of judgment on the past due amounts merely upon a showing that the past due amounts remain unpaid. "Due process does not require that notice be given before the ...

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