Elwell v. Sisson

• Decision Date: 30 April 1975
• Citation: 367 N.Y.S.2d 711,81 Misc.2d 1070
• Parties: . Gary SISSON, Respondent. Family Court, Yates County
• Court: New York Family Court

Page 711

367 N.Y.S.2d 711

81 Misc.2d 1070

In the Matter of a Proceeding for Support Under Article 4 of the Family Court Act, Marie ELWELL, Petitioner, v. Gary SISSON, Respondent.

Family Court, Yates County.

April 30, 1975.

John R. Kennedy, Penn Yan, for petitioner.

Weston H. Palmer, Penn Yan (Walter G. Iles, III, New York City, of counsel), for respondent.

MEMORANDUM-DECISION

FREDERICK D. DUGAN, Judge.

The respondent step-father here contends that he is no longer chargeable with the support of his divorced wife and her 8 year old son even though they receive public assistance.

On August 4, 1972 the Family Court found respondent chargeable with the support of his wife and the step-son (§§ 442, 415 Family Court Act; § 101, subd. 1 Social Services Law) and ordered him to pay $8.00 per week. The parties were then separated. The wife was then and continues now to be unemployed. She was then and is still receiving public assistance for herself and that child.

Less than two months after the Family Court Order, the respondent obtained a divorce from his wife on the grounds of her cruelty. The Supreme Court decree dated September 11, 1972 makes no provision for any support or alimony.

The application now before the court alleges respondent's violation of the Family Court support order of August 4, 1972. Respondent here contends that he is not chargeable with the support of his ex-wife and the step-son by reason of the divorce.

Petitioner contends that he is chargeable, citing § 415 Family Court Act and § 101, subd. 1 Social Services Law, which each provide that the spouse or parent of a recipient of public assistance or a person liable to become in need thereof, if of sufficient ability, is responsible for the support of such person or child under age 21 years. Both state that step-parents shall in like manner be responsible for the support of children under the age of 21 years.

The step-parent's support law in New York is statutory in origin. There was no such common law obligation. (Matter of Kane v. Necci, 245 App.Div. 1, 280 N.Y.S. 489, app. dsmd. 269 N.Y. 13, 198 N.E. 613).

It is imposed only upon step-fathers of children who are receiving public assistance or in danger of doing so. It is not an obligation 'generally applicable' to all step-children (Matter of Slochowsky v. Lavine, 73 Misc.2d 563, 342 N.Y.S.2d 525).

In Peake v. Peake, 205 Misc. 393, 128 N.Y.S.2d 631, a 1954 case in the Domestic Relations Court of the City of New York, it was held that a step-parent is chargeable with the support of a step-child as long as he is the step-parent. When that relationship is terminated by a decree of divorce from the mother of the child, his obligation ends.

Peake involved the standards then set forth in § 101--5 Domestic Relations Court Act which provided essentially that a step-parent was chargeable with the support of a step-child likely to become a public charge if it were shown that the step-parent had knowledge of the child's existence at the time of the marriage.

The petitioner-mother there sought support for her child from the step-father after he had obtained a divorce from her. The Court noted that no proof was submitted that the child was likely to become a public charge but stated that was not the question to be passed upon in that proceeding.

'. . ., the law responsive to what is right, imposes an obligation to support a step-child by the husband. That obligation continues as long as the relationship exists between the stepfather and mother. It ceases and comes to an end when that relationship is terminated and the erstwhile spouse of the child's mother is no longer her husband. It continues only as long as he is the stepfather.' (Peake v. Peake, 205 Misc. 393, at 395, 128 N.Y.S.2d 631, at 632).

Peake was cited by the Appellate Division, Second Department, in Eckhardt v. Eckhardt, 37 A.D.2d 629, 323 N.Y.S.2d 611, #8. That 1971 decision involved a Family Court order granted under the Uniform Support of Dependents Law. It held that since petitioner-mother's daughter could only be regarded as appellant's step-child while the parties...