Bauer v. Bauer
| Decision Date | 03 January 1977 |
| Citation | 55 A.D.2d 895,390 N.Y.S.2d 209 |
| Parties | Joan BAUER, Respondent, v. Carl BAUER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Hale & Russell, New York City (Joseph McQuade and Richard L. Russell, New York City, of counsel), for appellant.
W. A. Newcomb, New York City, for respondent.
Louis J. Lefkowitz, Atty. Gen., New York City (Alan R. Smulevitz and Samuel A. Hirshowitz, New York City, of counsel), intervenor pro se.
Before MARTUSCELLO, Acting P.J., and COHALAN, RABIN, HAWKINS and LATHAM, JJ.
In a support proceeding, the father appeals
In a support proceeding, the fathr appeals from (1) an order of the Family Court, Westchester County, dated February 10, 1975, which, after a hearing, directed him to pay $65 per week for the support of his infant son, Scott Bauer, and (2) a further order of the same court, dated April 16, 1975, which directed him to pay petitioner's attorney an amount towards counsel fees, plus said attorney's disbursements.
Order dated April 16, 1975 affirmed, without costs or disbursements.
Order dated February 10, 1975 reversed, without costs or disbursements, and proceeding remanded to the Family Court for a new hearing and determination in accordance herewith. Appellant is to comply with the directions contained in the order dated February 10, 1975 pending the entry of an order based upon the new determination to be made by the Family Court.
The parties were married in Pennsylvania in 1952, but have been separated since 1972. They are not divorced. When they separated, the infant, Scott, lived with his father; since June, 1973 the child has resided with petitioner and his older brother. Originally, the petition sought support for petitioner and the parties' two children. The Family Court, however, after being apprised of an outstanding order of support by the Court of Common Pleas of Pennsylvania, which provided for the support of petitioner and the parties' older son, dismissed so much of the petition as sought support for them. The proceeding continued, limited solely to the question of support for the younger son, Scott. In a temporary order of support, the Family Court directed appellant to pay $150 per month for the said child's support.
After reviewing the infant's needs and the father's resources, the Family Court awarded $65 per week for the child's support. The Family Court, however, denied appellant's request, made at the beginning of the hearing, to direct petitioner to produce all data relating to her financial resources and to direct her to appear for a deposition.
We hold that it was error for the Family Court to have denied appellant any inquiry or deposition respecting petitioner's resources. Section 413 of the Family Court Act charges the father with the primary obligation for support of his child. Section 414 of the Family Court Act provides that '(t)he court may apportion the costs of the support of the child between the parents according to their respective means and responsibilities.' The power to apportion does not affect the priority of the obligation but, under circumstances where both parents are capable of support, inquiry may be had as to the financial circumstances of both parties.
In view of the within disposition, we do not reach either the issue of the constitutionality of sections 413 and 414 of the Family Court Act as applied to appellant or the issue of his status to question their constitutionality. Apart from the 'strong presumption of validity' which 'attaches to legislative enactments' (Nettleton Co. v. Diamond, 27 N.Y.2d 182, 193, 315 N.Y.S.2d 625, 264 N.E.2d 118), '(q)uestions involving the constitutionality of a law' will not be considered by an appellate court 'unless they are essential to the determination of the appeal' (11 Carmody-Wait 2d, N.Y.Prac., § 71,114, citing Curtin v. Barton,139 N.Y. 505, 34 N.E. 1093 and Matter of Attorney General (Olyphant), 155 N.Y. 441, 50 N.E. 57, 58).
I concur in the result reached by the majority. Nevertheless, I believe that the issue of the constitutionality of sections 413 and 414 of the Family Court Act is squarely presented, to the limited extent that those sections placed the Primary obligation of support upon the father of a child, and to that limited extent I would hold them unconstitutional as violative of the equal protection clause of the Fourteenth Amendment to the United States Constitution.
Sections 413 and 414 of the Family Court Act provide that, in a support proceeding, the primary duty of support rests upon the father, regardless of the mother's financial resources (see Drazin v. Drazin, 31 A.D.2d 531, 295 N.Y.S.2d 183; Santasiero v. Briggs, 278 App.Div. 15, 103 N.Y.S.2d 1). A mother becomes liable for the support of her child only when the father is 'dead, incapable of supporting his child, or cannot be found within the state' (Family Ct. Act, § 414). Only then may the court look to the mother for support (Siegel v. Hodges, 15 A.D.2d 571, 222 N.Y.S.2d 989). I believe it is no longer constitutionally permissible to impose the sole burden of child support on a father (who perhaps earns $10,000 per year, but is capable of giving support), and exempt the mother (who perhaps earns $20,000 per year).
In recent years the Supreme Court of the United States has ruled that a classification based solely upon sex is inherently suspect as violative of the equal protection clause of the Fourteenth Amendment to the United States Constitution (Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583). Nevertheless, in applying that clause, the Supreme Court has recognized that the Fourteenth Amendment does not deny to states the power to treat different classes of persons in different ways. It does, however, require that the classification have a reasonable relation to the objective of the statute (Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225).
In Frontiero v. Richardson (supra) the court held violative of the due process clause a statute which provided that spouses of male members of the armed forces are dependents for purposes of certain benefits, but that spouses of female members of the armed forces are not dependents unless they are in fact dependent on their spouses for more than one-half of their support. The court held that a statutory scheme which draws a sharp line between the sexes, solely for the purpose of achieving administrative convenience, necessarily commands dissimilar treatment for men and women who are similarly situated and thus involves the very kind of arbitrary legislative choice forbidden by the Constitution.
In Reed v. Reed (supra) a provision of the Idaho probate laws mandated that men be given preference over women when persons of the same entitlement apply for appointment as administrator of an estate. The Supreme Court held that the statute was based solely upon discrimination by sex and that it violated the Constitution. The court stated (404 U.S. at pp. 75--76, 92 S.Ct. at p. 254):
...
To continue reading
Request your trial
-
Thaler v. Thaler
...People v. Siciliano, 52 A.D.2d 408, 418, 384 N.Y.S.2d 994, 1000 (1st Dept. 1976; opinion of Mr. Justice Lupiano); and Bauer v. Bauer, 55 A.D.2d 895, 390 N.Y.S.2d 209 (2nd Dept. 1977; opinion of Mr. Justice B. Constitutional Infirmity The New York alimony statute cannot survive constitutiona......
-
Mac Fadden v. Martini
...F.C.A. § 413) which had been construed as charging "the father with the primary obligation for support of his child" (Bauer v. Bauer, 55 A.D.2d 895, 896, 390 N.Y.S.2d 209) and hence the wife's financial means were considered irrelevant to the father's obligation to support his minor childre......
-
Phillips v. Village of Oriskany
...of the validity thereof is not in this case, and the court erred in ruling thereon (see 11 Carmody-Wait 2d 71.114; Bauer v. Bauer, App.Div., 390 N.Y.S.2d 209, 211). The sentence in section 25 of Article IX of the ordinance which is relevant to this case is that, "A non-conforming use of lan......
-
Carter v. Carter
...which has been read by this court as charging "the father with the primary obligation for support" of his child (Bauer v. Bauer, 55 A.D.2d 895, 896, 390 N.Y.S.2d 209, 210). Judge Dembitz of the Family Court, considering section 413 together with section 414, read the latter section as provi......