State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 16, 2014 517354 

________________________________

In the Matter of STARLA D.,

Respondent,

v MEMORANDUM AND ORDER

JEREMY E.,

Appellant.

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Calendar Date: September 12, 2014

Before: Peters, P.J., Stein, Garry, Egan Jr. and Clark, JJ.

__________

Jeremy Bogosian, Clifton Park, for appellant.

Stephen M. Dorsey, County Attorney, Ballston Spa (Michael

J. Hartnett of counsel), for respondent.

Heather Corey-Mongue, Ballston Spa, attorney for the child.

__________

Egan Jr., J.

Appeals (1) from two orders of the Family Court of Saratoga

County (Howley, S.M.), entered August 22, 2013, which granted

petitioner's application, in a proceeding pursuant to Family Ct

Act article 5-B, to determine paternity of a child born to

petitioner and for an award of child support, and (2) from an

order of said court (Jensen, J.), entered October 11, 2013, which

denied respondent's objections to said orders.

In December 2001, petitioner, a resident of Alabama,

commenced a proceeding in the Juvenile Division of the District

Court of Colbert County, Alabama (hereinafter the Alabama court)

against respondent, a New York resident, alleging that respondent

was the biological father of the subject child (born in 2001) and
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seeking an award of child support. Respondent, appearing pro se,

answered and thereafter underwent DNA testing. Petitioner, who

did not complete her portion of the DNA testing, subsequently

moved to dismiss the proceeding "with prejudice" and, in July

2004, the Alabama court granted her request.

Thereafter, in January 2011, petitioner commenced the

instant proceeding against respondent pursuant to the Uniform

Interstate Family Support Act (see Family Ct Act art 5-B),

seeking to establish paternity and, in conjunction therewith, an

award of child support. Respondent moved to dismiss the petition

contending, among other things, that the proceeding was barred by

res judicata and/or equitable estoppel. A Support Magistrate

transferred the matter to Family Court for a hearing as to the

equitable estoppel defense and, at the conclusion thereof, Family

Court, among other things, dismissed respondent's equitable

estoppel defense. Upon respondent's appeal from that order, this

Court affirmed (95 AD3d 1605 [2012], lv dismissed 19 NY3d 1015

[2012]).

Following another unsuccessful motion to dismiss based upon

similar grounds, respondent answered and moved for summary

judgment, again contending that this proceeding was barred by res

judicata and equitable estoppel. When a Support Magistrate

denied respondent's motion, respondent unsuccessfully moved for

reconsideration and thereafter filed objections to the Support

Magistrate's order. Family Court denied respondent's objections

and sanctioned respondent's counsel in the amount of $1,000 for

frivolous motion practice.

In the interim, a hearing upon the underlying petition

commenced. Thereafter, by orders entered August 22, 2013, the

Support Magistrate rejected respondent's affirmative defenses

and, based upon the evidence adduced at the hearing, issued the

requested order of filiation and awarded child support. 

Respondent filed objections to the Support Magistrate's orders

and, by order entered October 11, 2013, Family Court dismissed

such objections and affirmed the Support Magistrate's orders in

their entirety. These appeals by respondent ensued.
-3- 517354 

The crux of respondent's argument upon appeal is that

Family Court erred in failing to apply the Full Faith and Credit

Clause (see US Const, art IV, § 1) and principles of res judicata

to bar petitioner from maintaining the instant proceeding. "In

New York, res judicata, or claim preclusion, bars successive

litigation based upon the same transaction or series of connected

transactions if: (i) there is a judgment on the merits rendered

by a court of competent jurisdiction, and (ii) the party against

whom the doctrine is invoked was a party to the previous action

[or proceeding], or in privity with a party who was" (Matter of

People v Applied Card Sys., Inc., 11 NY3d 105, 122 [2008], cert

denied 555 US 1136 [2009] [internal quotation marks and citations

omitted]; see Gomez v Brill Sec., Inc., 95 AD3d 32, 35 [2012]).1

Here, there is no dispute that the Alabama proceeding

involved the same parties and underlying issues, i.e., paternity

and child support. Additionally, under both Alabama and New York

law, a dismissal "with prejudice" indeed constitutes an

adjudication "on the merits" (see Matter of Coleman v Coleman, 1

AD3d 833, 834 [2003]; Gonzalez, LLC v DiVincenti, 844 So 2d 1196,

1203 [Ala 2002]). Further, there is no question that the Alabama

court had subject matter jurisdiction over the paternity and

support proceeding. Accordingly, the only remaining issue is

whether the Alabama court acquired personal jurisdiction over

respondent.

Personal jurisdiction is – under both New York and Alabama

law – a waivable defense (see CPLR 3211 [a] [8]; [e]; Alabama

Rules of Civ Proc rule 12 [h] [1]). In this regard, although

respondent raised lack of personal jurisdiction in his pro se

answer, respondent testified at the paternity hearing that he did

so only to avoid entry of a default judgment against him, and

that he expressly advised the Alabama court that if there was

1 Although we are of the view that New York law applies

here (see Family Ct Act §§ 580-101 [16], [17]; 580-303 [1]; 580-

701 [b]), the choice of law issue need not detain us, as the

elements of the doctrine of res judicata are the same under New

York and Alabama law (see e.g. Bradberry v Carrier Corp., 86 So

3d 973, 986 [Ala 2011]).
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going to be "a hearing with genetic testing that [he] would be a

full participant." Respondent further testified that when the

Alabama court declined to dismiss the proceeding for improper

service, he affirmatively requested that he be allowed to undergo

genetic testing in New York, that the Alabama court granted his

request and that he subsequently underwent such testing. Under

these circumstances, we are satisfied that respondent not only

waived his right to assert that the Alabama court lacked personal

jurisdiction over him but, indeed, expressly consented thereto. 

Accordingly, as all of the elements of res judicata are present,

Family Court erred in failing to dismiss petitioner's application

upon this ground.

As a final matter, we agree that respondent's counsel was

not afforded adequate notice and opportunity to be heard prior to

Family Court imposing sanctions.2 In light of our conclusion

that the Alabama court proceeding is entitled to preclusive

effect here, the imposition of sanctions was unwarranted in any

event.

Peters, P.J., Stein, Garry and Clark, JJ., concur.

ORDERED that the orders are reversed, on the law, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court

2 The appeal from Family Court's October 11, 2013 order

brings up for review the propriety of the sanctions imposed in

the prior intermediate order.