Burns v. Burns

• Citation: 278 N.Y.S.2d 669,53 Misc.2d 484
• Parties: * Harold BURNS, Petitioner, v. Celeste BURNS, Respondent. Celeste BURNS v. Harold BURNS. Family Court, New York County
• Decision Date: 03 April 1967
• Court: New York City Court

Page 669

278 N.Y.S.2d 669

53 Misc.2d 484

^*

Harold BURNS, Petitioner, v. Celeste BURNS, Respondent.

Celeste BURNS v. Harold BURNS.

Family Court, New York County.

April 3, 1967.

Morris H. Halpern, New York City, Abraham J. Heller, New York City, of counsel, for petitioner and respondent, Harold Burns.

Cox & Calie, New York City, Grace D. Cox, New York City, of counsel, for respondent and petitioner, Celeste Burns.

RICHARDS W. HANNAH, Judge.

DECISION

This was a hearing on consolidated petitions.

On February 24, 1966 Harold Burns, the petitioner, filed a petition against his former wife, alleging: that they had executed a separation agreement dated June 28, 1962 wherein he had agreed to pay $50. weekly for the support of his wife and $75. weekly for the support of his child, Pearl; that the custody of the child was with the mother; that the father had visitation rights; that this agreement was incorporated into a Mexican divorce decree wherein the wife was the plaintiff and that the petitioner seeks to have this court modify the Mexican decree to $50. weekly for both since there has been a change of his circumstances. On April 21, 1966, Celeste Burns moved to dismiss the petition upon the ground that this court had no jurisdiction but withdrew her motion.

On April 27, 1966, Celeste Burns filed a petition against Harold Burns alleging the support and custody provisions of the separation agreement; that the respondent was in arrears in the amount of $1293. to April 27, 1966; that an action had been commenced on April 21, 1966 in the Civil Court for arrears amounting to $993.; and praying that the respondent be dealt with in accordance with Article 4 (Support) of the Family Court Act including the granting of reasonable counsel fees.

The issues raised here pertain to Mexican decrees of divorce obtained by a wife and not to New York decrees, the enforcement of which in this court is specifically provided for in Article 6, section 13, subd. c of the New York State constitution. The petitions in these proceedings fall under section 461(b) and 466(c) of the Family Court Act; the former section dealing with the duty to support a child after separation, separation agreement or termination of marriage and the latter with a wife or former wife's support after a divorce, separation or annulment. These sections provide that this court may (1) entertain an application to enforce the order of the supreme court or of another court of competent jurisdiction requiring support or (2) entertain a motion to modify such order on the ground that changed circumstances require such modification unless the supreme court retains exclusive jurisdiction. Section 461(b) contained the words 'of another court of competent jurisdiction' from the time of its enactment (1962); whereas this phrase was added to section 466(c) by an amendment effective September 1, 1965. The legislative history does not disclose the reason for this omission in section 466(c) at the time the section was originally enacted.

The apparent purpose of these sections was to allow the family court to enforce or modify New York supreme Court orders or decrees of support unless the supreme court retained exclusive jurisdiction and to enforce and modify the orders and decrees of another court of competent jurisdiction upon proof of changed circumstances. Prior to 1962 neither the Domestic Relations Court nor the Children's Court, the predecessor courts of this court, possessed the power to enforce any provisions of visitation or support of either the supreme court of New York or a foreign court of competent jurisdiction (Werner v. Werner, 204 Misc. 1085, 127 N.Y.S.2d 278 (1953). The supreme court does not have any statutory authority to modify an out of state decree. (In the Matter of Lewis v. Lewis, 2 Misc.2d 849, 151 N.Y.S.2d 894, aff. 5 A.D.2d 674, 168 N.Y.S.2d 473 (1958) mot. for lv. to app. den. 6 A.D.2d 690, 174 N.Y.S.2d 888, app. dismissed 4 N.Y.2d 872, 174 N.Y.S.2d 241, 150 N.E.2d 710; Moen v. Thompson, 186 Misc. 647, 61 N.Y.S.2d 257; Herbert v. Herbert, 198 Misc. 103, 97 N.Y.S.2d 572; Steinhauser v. Steinhauser, 5 Misc.2d 539, 158 N.Y.S.2d 854.)

The result was that prior to September 1, 1962 the Domestic Relations Court and the Children's Court exercised its independent jurisdiction by enforcing the primary obligation of the father by making support orders for children in amounts commensurate with the financial needs of the child and the earnings of the father where there were foreign divorce decrees (Werner v. Werner, 204 Misc. 1085, 127 N.Y.S.2d 278). This was in effect an order superseding the support provisions of the divorce decree of the foreign court. It still offered no relief to the former wife, who was relegated to sue in a civil court for any arrears due under the order or decree or separation agreement (Domestic Relations Court Act, sec. 137). The legislature, recognizing the problem, sought to aid children by enacting sections 461 and former wives by the amendment to sec. 466 of the Family Court Act; the object being to consolidate family problems of support in one court so that a former wife or former wife on behalf of a child could petition to enforce the provisions of a New York order or decree when the supreme court had not retained exclusive jurisdiction and in the case of a foreign decree to enforce or modify it upon the ground of changed conditions. However laudable the purpose of this legislation may be, the provisions of the family court act must be within the framework of the constitution. In People v. Allen, 301 N.Y. 287, 290, 93 N.E.2d 850, 852, the court said:

'It is axiomatic that the Legislature in performing its law-making function may not enlarge upon or abridge the Constitution.'

The jurisdiction of the Family Court is set forth in Art. 6 section 13 of the constitution. It provides:

'a. * * *

'b. The family court shall have jurisdiction over the following classes of actions and proceedings which shall be originated in such family court in the manner provided by law:

'(4) the support of Dependents except for support incidental to actions and proceedings in this state for marital separation, divorce, annulment of marriage or dissolution of marriage;

'c. The family court shall also have jurisdiction to determine, with the same powers possessed by the supreme court, The following matters when referred to the family court from the supreme court: habeas corpus proceedings for the determination of the custody of minors; and in actions and proceedings for marital separation, divorce, annulment of marriage and dissolution of marriage, applications to fix temporary or permanent support and custody, or applications to enforce judgments and orders of support and of custody, or applications to modify judgments and orders of support and of custody which may be granted only upon the showing to the family court that there has been a subsequent change of circumstances and that modification is required.' (Italics mine).

Since the family court is of limited jurisdiction its powers must be set forth in the constitution and its jurisdiction is thus limited. Nowhere in the constitution is there any language which clearly confers upon this court the power to enforce or modify orders or decrees of other courts of competent jurisdiction. Since subdivision c refers only to New York orders or judgments, it would seem that if it was intended that this court should have the power to enforce or modify foreign orders or decrees, the constitution would have been worded accordingly. The constitution indicates that the intention was that the Family Court could only act under subdivision c upon the matters referred from the Supreme Court. Since this phrase is following a colon, the situations in which this court can act follow and then the condition that there must be a subsequent change in circumstances for a modification to be made. This point of jurisdiction was raised in Abreu v. Abreu, 45 Misc.2d 952, 258 N.Y.S.2d 134, where a husband petitioned under section 461(b) of the Family Court Act to enforce the custodial provisions of an Alabama decree of divorce which had incorporated the provisions of a separation agreement and gave specified visitation privileges to the husband, which he claimed the wife had refused him. The court held that section 461(b) did not confer authority on the Family Court to entertain the application; that the Supreme Court had jurisdiction and if it had been transferred from the Supreme Court to Family Court, it would have jurisdiction. The Family Court transferred the proceedings to the Supreme Court pursuant to Article VI, section 19 subdivision c of the New York Constitution it being a proceeding which had not been transferred to the Family Court from the Supreme Court and over which the Family Court has no jurisdiction in the absence of a referral from the Supreme Court. Subsequently, the Supreme Court referred the petition back to the family court for a final decision. (46 Misc.2d 942, 261 N.Y.S.2d 687).

It has been argued that this petition falls under the word 'dependents' as set...