Carole K. v. Arnold K.

• Decision Date: 17 February 1976
• Parties: CAROLE K., Petitioner, v. ARNOLD K., Respondent.
• Court: New York Family Court

Page 593

380 N.Y.S.2d 593

85 Misc.2d 643

CAROLE K., Petitioner, v. ARNOLD K., Respondent.

Family Court, New York County.

Feb. 17, 1976.

Lea, Goldberg & Spellun, P.C., by Lola S. Lea, New York City, for petitioner.

Norman Annenberg, New York City, for respondent.

OPINION

NANETTE DEMBITZ, Judge.

In this proceeding for child support under sections 413 and 414 of the Family Court Act, a major question is the constitutionality of imposing primary liability on fathers for child support and only secondary liability on mothers. The court concludes that the constitutional guarantee of equal protection of the law, as now interpreted by the United States Supreme Court, requires a uniform standard of parental liability regardless of sex. Also to be determined is the proper standard for evaluating respondent-father's obligation to his children as compared to his obligations to his creditors, in view of the fact that his payments on his debts have been absorbing a substantial share of his income of approximately $57,000. a year.

The instant controversy was precipitated by a decrease in 1975 in the income of respondent, who was and is employed by stock brokerage firms, from earnings over $100,000 annually for the previous eight or nine years. Though the parties were divorced in 1960, child support had until 1975 been paid under agreements between the parents rather than decree or court order (with no payment of alimony).

1. Equality of Parental Liability for Child Support

While the Family Court Act provides that a father must pay for his child's support 'a fair and reasonable sum according to his means', a mother becomes liable only if the father 'is dead, incapable of supporting his child, or cannot be found within the state' (secs. 413, 414; see Drazin v. Drazin, 31 A.D.2d 531, 532, 295 N.Y.S.2d 183, 184; Novikoff v. Novikoff, 29 A.D.2d 754, 287 N.Y.S.2d 697). The Act's differential treatment of male and female parents, and the encrusted common law standard it reflects (see Young v. Valentine, 177 N.Y. 347, 352, 69 N.E. 643, 644), appears to be the residue of the long-gone legal era when the property and earnings of married women belonged to their husbands and they could not even 'serve as legal guardians of their own children' (see Frontiero v. Richardson, 411 U.S. 677, 685, 93 S.Ct. 1764, 1769, 36 L.Ed.2d 583). Progress in the economic status of women has accompanied the change in their legal status achieved since that day (see Taylor v. Louisiana, 419 U.S. 522, 535, n. 17, 95 S.Ct. 692, 42 L.Ed.2d 690).

It is true that many women adhere to the home-making function and that their husbands marry them with this knowledge or urge that role upon them. It is also true that the heavy hand of centuries of legal, economic, and cultural discrimination against women may still press against a mother who is employed outside the home, so that she fails to achieve the earning level of the father. See Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610; Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189. However, in a support proceeding the past and present circumstances of the parties, particularly in regard to the woman's wage-earni capacity, are weighed on an individual basis (see Kay v. Kay, 37 N.Y.2d 632, 637, 376 N.Y.S.2d 443, 339 N.E.2d 143). Thus, sexual generalization in the law of support is the quintessence of unconstitutionality. In summarizing its holdings the United States Supreme Court has pointed out: 'the challenged classifications based on sex were premised on overbroad generalizations that could not be tolerated under the Constitution.' (Schlesinger, 419 U.S. at p. 507, 95 S.Ct. at p. 577.) See also Weinberger v. Weisenfeld, 420 U.S. 636, and Matthews v. Coffin, U.S.Dist.Ct., D.C., Aug. 14, 1975, pending U.S.Sup.Ct. No. 75--791, O.T.1975; Stanton v. Stanton, 421 U.S. 7, 13, 95 S.Ct. 1373, 43 L.Ed.2d 688, and cases there cited; Henderson v. Henderson, 458 Pa. 97, 327 A.2d 60 (Sup.Ct., Pa., 1974).

Since there is no rational basis for the limitations of section 414 of the Family Court Act on the liability of mothers for child support (mothers can hardly be deemed forever exempt because of their child-bearing function), those provisions must be held unconstitutional. It is to be noted that this ruling brings the Act into conformity with the Domestic Relations Law, with which it is deemed In pari materia and which provides for the 'education and maintenance' of a child 'out of the property of either or both of its parents.' (D.R.L. sec. 240.) See also Phillips v. Phillips, 1 A.D.2d 393, 397, 150 N.Y.S.2d 646, 651, affd 2 N.Y.2d 742, 157 N.Y.S.2d 378, 138 N.E.2d 738, indicating that the woman's wage-earning capacity, though specifically mentioned only in relation to alimony in the Domestic Relations Law, should be considered in relation to total family responsibilities; and see Social Services Law, sec. 101.

While respondent was unsuccessful in showing that petitioner is physically capable of resuming full-time employment at present, the court must reject petitioner's argument that she will not be liable for child support when she regains such capability. Her earning potential will then be relevant on the same basis as a father's. (As to the latter, see Meyrowitz v. Meyrowitz, 34 A.D.2d 965, 966, 312 N.Y.S.2d 426, 427; Kramer v. Kramer, 248 App.Div. 781, 289 N.Y.S. 49; Sullivan v. Sullivan, 55 Misc.2d 691, 694, 286 N.Y.S.2d 346, 350.)

2. Respondent's Obligation for Child Support

Unlike most child support proceedings, the actual expenditures for the two children--sons aged 18 and 15--cannot serve as the starting-point for determination of the proper order. For, even during the period that respondent was paying the agreed support of $941 a month, petitioner's father was contributing to the children's upkeep by gifts of approximately $45,000 a year. As petitioner urges, the court is mandated to make a support determination on consideration only of the circumstances of those legally responsible for child support--the parents, regardless of gifts from other sources. See Quat v. Freed, 25 N.Y.2d 645, 306 N.Y.S.2d 462, 254 N.E.2d 765; Boines v. Lavine, 44 A.D.2d 765, 354 N.Y.S.2d 252 (4th Dept.); Guerriero v. Guerriero, 40 A.D.2d 684, 336 N.Y.S.2d 268 (2d Dept.).

a. Respondent's Debts

On respondent's available income, which is approximately $33,700 annually after his payment of taxes (see supplementary findings), the child support requested by petitioner of $1,000 a month seems reasonable but for respondent's obligations on his debts. His monthly payments on loans (mainly from banks) averaged for the ten months prior to the hearing herein $1,561, plus $250 a month to the Internal Revenue Service for tax arrears. While he is obligated to pay a much larger monthly amount to cover repayment of principal as well as interest on his debts, he did not demonstrate persuasively that his creditors are attempting to coerce increases in his payments. The issue is whether, as respondent argues, he should give his children only the remainder of his income after his payment of his personal expenses plus debt-payments, or whether, as petitioner argues, his children are entitled to priority over his creditors.

It is settled law that a respondent's authentic debts must be considered in fixing alimony or child support. E.g., Harley v. Harley, 49 A.D.2d 513 (1st Dept.); Norton v. Norton, 41 A.D.2d 559, 560, 339 N.Y.S.2d 734, 735 (2nd Dept.); Minskoff v. Minskoff, 17 Misc.2d 718, 719, 187 N.Y.S.2d 415, 417 (Sup.Ct., N.Y.Cnty.); see Foster and Freed, 2 Law and the Family (1972) 82, 131; Clark, Law of Domestic Relations (1968) 444. Petitioner suggests, however, that this rule should apply only if a default on his debts would impede his vocational success, and that this respondent's loans do not fall in this category. See Nilsson v. Nilsson, 200 Misc. 841, 844, 108 N.Y.S.2d 954, 959 (Dom.Rels.Ct., N.Y.C.); Amato v. Amato, 45 N.Y.S.2d 371, 373 (Dom.Rels.Ct., N.Y.C.) ¹

It appears true, as petitioner argues, that respondent's employment in brokerage firms did not and does not require his assumption of debt, or maintenance of a line of credit. However, the Court cannot assume that such creditors as banks and the Internal Revenue Service--as distinguished from friends or relatives--would refrain from action against respondent if he decreased the scaled-down payments they have tolerated over the past year, nor that his default would have no effect on his occupational standing. In the absence of evidence to that effect, the fact that respondent's debts apparent were contracted to finance his personal purchases of securities does not suffice to take them out of the rule that debts must be taken into account in support proceedings. With one exception (see supplemental findings) respondent obtained the loans here in issue years before the instant child support controversy, so that no question of bad faith is presented concerning such obligations.

b. Duty to Dependents

While respondent's debt payments thus must be considered, they cannot be given an absolute priority over child support. Rather, a balancing of obligations must be sought, like that mandated by the rule that the 'reasonable requirements' of the debtor and his dependents must be satisfied before judgment creditors take. (CPLR 5205, 5226) See also Bankruptcy Act, sec. 17a(7), 11 U.S.C. § 35a(7) as to inviolability of support orders in bankruptcy. The rule is the same whether the creditor seeks to obtain, or the debtor seeks to make, payments at the expense of his dependents. See McDonnell v. McDonnell, 281 N.Y. 480, 482, 24 N.E.2d 134, 135; Haas v. Reiser, 201 Misc. 234, 238, 105 N.Y.S.2d 98, 102 (Sup.Ct., Nassau); Beahm v. Beahm, 47 Misc.2d 900, 902, 263 N.Y.S.2d 533, 535 (Fam.Ct., N.Y.Cnty.) and First Natl. Bank of New Rochelle v. Lewis, 42 Misc.2d 1007, 249 N.Y.S.2d 537 (County Ct.,...