Abreu v. Abreu

• Decision Date: 08 April 1965
• Citation: 258 N.Y.S.2d 134,45 Misc.2d 952
• Parties: . Gloria Dubois ABREU, a/k/a Gloria Dubois, Respondent. Family Court, Ulster County
• Court: New York Family Court

Page 134

258 N.Y.S.2d 134

45 Misc.2d 952

In the Matter of a Proceeding for Support under Article 4 of the Family Court Act, Edward ABREU, Petitioner, v. Gloria Dubois ABREU, a/k/a Gloria Dubois, Respondent.

Family Court, Ulster County.

April 8, 1965.

Edward T. Feeney, Kingston, for petitioner.

Ernest Schirmer, Saugerties, for respondent.

HUGH ROSS ELWYN, Judge.

In August 1961 the petitioner husband and respondent the wife obtained an Alabama divorce decree which confirmed a separation agreement between the parties, dated June 29th, 1961, but provided that the agreement was not merged in the decree but shall in all respects survive the decree. The separation agreement provided for support payments for a child in the amount of $10 per week, gave custody of the child to the wife and afforded certain specified visitation privileges to the husband.

The husband, claiming that the wife has wrongfully failed and refused to permit him to visit his daughter in accordance with the rights and privileges accorded to him by their separation agreement brings this proceeding to enforce the Alabama decree which incorporated and confirmed the separation agreement from which his visitation rights stem. The petition indicates that the proceeding is brought pursuant to Section 461(b)(i) of the Family Court Act which provides that 'If an order of the supreme Court or of another court of competent jurisdiction requires support of the child, the family court may (i) entertain an application to enforce the order requiring support.'

Although the respondent has raised no question as to the jurisdiction of the court to entertain the application, jurisdiction of the subject matter may not be obtained by the consent or stipulation of the parties if the court in fact lacks jurisdiction (Benson v. Eastern Bldg. & Loan Ass'n, 174 N.Y. 83, 86, 66 N.E. 627, 628; Vaughan v. Vaughan, 178 Misc. 577, 35 N.Y.S.2d 421; 1 Carmody-Wait 55; 1 Weinstein, Korn & Miller 301.02).

Section 461(b)(i) of the Family Court Act does not confer authority upon this court to entertain this application. Even if the words 'of another court of competent jurisdiction' are construed to include a court of competent jurisdiction of a foreign state as the petitioner urges, this is still not an application by or on behalf of the person for whom the support order was made to enforce the order, but rather an application on the part of the person against whom the support order runs to enforce a reciprocal right, that of visitation. Although the right to support payments and the right of visitation arising from the separation agreement may be dependent (Duryea v. Bliven, 122 N.Y. 567, 25 N.E. 908; Muth v. Wuest, 76 App.Div. 332, 78 N.Y.S. 431; Borax v. Borax, 4 N.Y.2d 113, 116, 172 N.Y.S.2d 805, 807, 149 N.E.2d 326, 327; Richards v. Richards, 5 Misc.2d 46, 157 N.Y.S.2d 874; Webster v. Webster, 14 Misc.2d 64, 176 N.Y.S.2d 799; Magrill v. Magrill, 16 Misc.2d 896, 184 N.Y.S.2d 516) the petitioner's visitation rights and their enforcement are essentially a custodial matter.

The Family Court has no general original jurisdiction over custody of minor children, but exercises jurisdiction over the custody of minors only as an incident to a support proceeding (F.C.A. §§ 446, 447) or a family offense proceeding (F.C.A. § 842) or when the matter has been referred to it by the Supreme Court (N.Y.Sonst. Act VI, § 13, Subd. c.; F.C.A. § 467, 651, 652). Section 468 of the Family Court Act furnishes no basis for the Court's jurisdiction for that section grants authority to the Family Court to...