Carter v. Carter

• Decision Date: 25 July 1977
• Parties: In the Matter of Allan S. CARTER, Appellant, v. Carolyn R. CARTER, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 88

397 N.Y.S.2d 88

58 A.D.2d 438

In the Matter of Allan S. CARTER, Appellant, v. Carolyn R. CARTER, Respondent.

Supreme Court, Appellate Division, Second Department.

July 25, 1977.

Reeder & Abel, New City (Steven L. Abel, New City, of counsel), for appellant.

Brent, Phillips, Dranoff & Davis, P. C., Nanuet (Sanford S. Dranoff, Nanuet, of counsel), for respondent.

Louis J. Lefkowitz, Atty. Gen., New York City (Daniel M. Cohen and Samuel A. Hirshowitz, New York City, of counsel), appearing pursuant to section 71 of the Executive Law and CPLR 1012 (subd. (b)).

Before LATHAM, J. P., and SHAPIRO, HAWKINS and SUOZZI, JJ.

SHAPIRO, Justice.

Petitioner Allan Carter, the divorced husband of respondent Carolyn Carter, has custody of their infant son, Kenneth Carter. He applied to the Family Court of Rockland County for an order directing his former wife to contribute to the child's support. His petition was dismissed. We reverse and remand for further proceedings consistent with this opinion.

THE ISSUE.

Are sections 413 and 414 of the Family Court Act unconstitutional insofar as they appear to place the primary duty of child support on the father and make the mother's duty of support of the child secondary by making that obligation conditional on the incapability of the father to support the child?

THE FAMILY COURT ACT PROVISIONS.

Sections 413 and 414 of the Family Court Act, in their entirety, read as follows:

" § 413. Father's duty to support child

"The father of a child under the age of twenty-one years is chargeable with the support of his child and, if possessed of sufficient means or able to earn such means, may be required to pay for such child's support a fair and reasonable sum according to his means as the court may determine."

" § 414. Mother's duty to support child; apportionment

"If the father of a child is dead, incapable of supporting his child, or cannot be found within the state, the mother of such child is chargeable with its support where such child has not attained the age of twenty-one years and, if possessed of sufficient means or able to earn such means, may be required to pay for its support a fair and reasonable sum according to her means, as the court may determine. The court may apportion the costs of the support of the child between the parents according to their respective means and responsibilities."

PRIOR PROCEEDINGS.

The parties were married on October 30, 1965. One child, Kenneth, was born of the marriage on October 17, 1970. On August 3, 1973 the parties executed a separation agreement under which the petitioner husband took custody of Kenneth, with the respondent being given visitation rights. Thereafter, on October 10, 1973, the parties were divorced. Petitioner thereafter remarried.

In November, 1975 and into February, 1976, the respondent, by a proceeding she brought in the Family Court, sought expansion and implementation of her rights of visitation with her son. While that proceeding was under way the petitioner, by petition dated February 18, 1976, instituted the instant support proceeding in the same court. On October 22, 1976 there was a further, apparently final, hearing on the wife's visitation proceeding involving a further amendment of the visitation order. Thereafter, the court and the parties turned to the father's support petition and the following colloquy occurred:

"The Court: Fine. Now the F-51-76, the petition filed by Mr. Carter. The Court was advised in chambers that counsel was ready to enter into a stipulation in substance as follows: that Section 413 and 414 of the Family Court Act apply to this proceeding.

"That Mr. Carter is not deceased and is fully capable of supporting the child and possessed of sufficient means to do so.

"That the statute, Section 414 does not require any apportionment under these circumstances.

"That the only issue before this Court is the constitutionality of Section (sic ) 413 and 414 of the Family Court Act.

"Would that be correct?

"Mr. Dranoff: So stipulated.

"Mr. Abel: So stipulated."

The respondent then moved as follows:

"Mr. Dranoff: * * * If Your Honor please, at this time Your Honor, I move based upon the stipulation based upon the financial situation of the former husband, I respectfully move to dismiss the petition on the grounds that it fails to set forth a Prima Facie case within Section (sic ) 413 and 414 of the Family Court Act on the face of this petition and specifically based upon the statements made, it is clear that under these Sections, Mr. Carter is not entitled to any contribution from Mrs. Carter."

The petitioner's attorney opposed the motion to dismiss:

"solely on the fact that the two Section (sic ) are unconstitutional as is further set forth in the brief which has been submitted."

Upon the foregoing record the Family Court ruled:

"At this time, the Court finds that no notice was given to the Attorney General as required under the Executive Law, since the question of constitutionality was raised. The Court finds at this time that Section (sic ) 413 and 414 are constitutional and dismisses the petition.

"Further, the Court grants the Petitioner leave to renew the motion in order to give notice to the Attorney General if he wishes to renew the motion. The motion should be made in writing. This has been an oral motion, although there have been memorandum (sic ) of law on notice to the attorney for the Respondent and on notice to the Attorney General's Office to give him an opportunity to reply if he so wishes.

"Mr. Abel: I am not sure when you are talking about the motion, which motion?

"The Court: I am sorry.

"Mr. Abel: We already had the motion to notify the AG which was going to withdraw, as I recall, we are going to withdraw that motion to obviate the need for notification to the AG.

"The Court: We'll do it on that basis.

"At this time you wish to withdraw the request to notify the Attorney General?

"Mr. Abel: Yes I do Your Honor.

"The Court: Based upon that statement, at this time the Court finds that there is no requirement of notification to the Attorney-General. ¹

"You wish that the Attorney General be notified in this proceeding mr. abel?

"Mr. Abel: At this time I have no particular request Your Honor. In other words, I am not moving to notify the AG.

"I might ask if Mr. Dranoff has any interest in notifying the AG?

"Mr. Dranoff: If Your Honor please, according to the CPLR, the obligation is based upon the party who claims the unconstitutionality of a statute. Since Mr. Abel has withdrawn his motion to notify the Attorney General, the Court on its own volition and its own motion should not have the obligation to notify the AG. That is his obligation.

"Mr. Abel: I agree.

"Mr. Dranoff: We respectfully ask the Court to stay by its decision, that the statute is constitutional as the case may be.

"The Court: At this time, the Court finds that Sections 413 and 414 of the Family Court Act are constitutional.

"The Court therefore, based upon that question of law and the stipulation as set forth on the record, that that is the only issue before the Court, dismisses the petition.

"Mr. Dranoff: Thank you very much, Your Honor.

"Mr. Abel: May I ask one thing. Will that stand as the decision of the Court, the verbal decision just now?

"The Court: The Court will issue an order which will be appealable which will be the decision of the Court. Subsequently, the Court may also issue a written decision.

"Mr. Abel: That's what I am inquiring about, you think that you may?

"The Court: It is possible."

The court thereafter issued its order declaring: "The petition dated February 18, 1976 be and the same hereby is dismissed."

We are faced here with still another in the series of questions which have been raised in the wake of the decision in Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225. In that case the court struck down, as a violation of the equal protection clause of the Fourteenth Amendment, a provision of the Idaho probate code which gave mandatory preference to men over women for appointme as administrator of a decedent's estate. The attack here is on language of section 413 of the Family Court Act, quoted above, 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 providing that "a mother becomes liable (to pay for her child's support a fair and reasonable sum according to her means) only if the father 'is dead, incapable of supporting his child, or cannot be found within the state' " (Carole K. v. Arnold K., 85 Misc.2d 643, 380 N.Y.S.2d 593). She, therefore, concluded that those provisions were unconstitutional. Our examination of the total language of both sections, coupled with our obligation to sustain their constitutionality even if that requires the excision of the opening phrases of section 414, which could be and have been read to declare that the mother of a child under the age of 21 years is not chargeable with its support unless one or another of the above-quoted conditions is met, leads us to a contrary conclusion. Insofar as the cases dealing with this question (see Matter of Garcy, 19 A.D.2d 811, 243 N.Y.S.2d 464; Matter of Lewis v. Lewis, 2 Misc.2d 849, 151 N.Y.S.2d 894, affd., 5 A.D.2d 674, 168 N.Y.S. 473, mot. for rearg. den., 5 A.D.2d 777, 169 N.Y.S.2d 1014, app. dsmd., 4 N.Y.2d 872, 174 N.Y.S.2d 241, 150 N.E.2d 710, mot. for lv. to app. den., 6 A.D.2d 690, 174 N.Y.S.2d 888; Carole K. v. Arnold K., supra ) have held to the contrary, we believe they are in error. ²

In excising the language in question, or reading it as not creating prior conditions for triggering a mother's responsibility to contribute to the support of her infant child in accordance with her means, and in giving greater weight to the latter part of section 414 of...