Foster v. Foster
| Decision Date | 15 December 1983 |
| Parties | Louise FOSTER, Petitioner, v. William FOSTER, Respondent. |
| Court | New York Family Court |
This proceeding was initiated by the filing of a petition on February 15, 1983 under docket F-197-83 wherein the Petitioner sought to modify the parties' decree of divorce dated September 14, 1982. The Petitioner alleged that the Respondent was in arrears on his maintenance payments. She requested that such payments, with an additional amount towards the arrears, be made through the Support Collection Unit.
On February 17, 1983 the Respondent filed a petition under docket F-218-83 alleging that he had become unemployed and that the Petitioner had recovered a judgment of Two Hundred Fifty Thousand dollars ($250,000.00) from the Ford Motor Company. Based upon these changes of circumstances the Respondent sought to modify the decree of divorce to eliminate his obligation to provide maintenance for the Petitioner.
The parties denied the allegations contained within the opposing petitions and the matters were referred to a Hearing Examiner for a fact-finding hearing.
On May 9th and June 7th of 1983 the parties appeared before the Examiner and presented their respective cases. The Examiner rendered his report, dated August 17, 1983, wherein he reduced maintenance from One hundred dollars ($100.00) to Seventy-five dollars ($75.00) per week. The Petitioner filed a timely objection thereto.
It is Petitioner's position that a reduction is unwarranted in that there was no proof that payment of maintenance imposed an extreme hardship on the Respondent. Petitioner contends that extreme hardship is the standard of proof to be applied herein in accordance with subdivision 9 of Domestic Relations Law section 236 B.
Respondent contends that a reduction is warranted in that he has proved a change of circumstances. He maintains that the standard of proof is changed circumstances as provided in Family Court Act section 466.
Subparagraph (b) of subdivision 9 of Domestic Relations Law section 236 B, as pertinent herein, provides as follows: "Where, after the effective date of this part, a separation agreement remains in force no modification of a prior order or decree incorporating the terms of said agreement shall be made as to maintenance without a showing of extreme hardship on either party, in which event the decree or order as modified shall supercede the terms of the prior agreement and decree for such period of time and under such circumstances as the court shall determine".
Subdivision (c) of Family Court Act section 466 states, as applicable herein, that "If the supreme court enters an order or decree granting alimony, maintenance or support in an action for divorce ... the family court may ... (ii) entertain an application to modify the order or decree granting alimony or maintenance on the ground that there has been a subsequent change of circumstances and that modification is required".
The parties herein entered into a written stipulation on September 7, 1982 that was incorporated, but not merged, within their divorce decree. The stipulation provided, inter alia, that the Respondent pay to the Petitioner the sum of One Hundred dollars ($100.00) per week for a period of five years for her maintenance.
It is the determination of this Court that this matter is governed by section 236 B of the Domestic Relations Law. The parties' decree of divorce expressly referred all future matters regarding maintenance to the Family Court. When a support matter is so referred, the Family Court stands in the place of the Supreme Court and is authorized to determine the issue and make any disposition that the Supreme Court could have made. (Matter of Robert T. v. Marcia T., 98 Misc.2d 557, 414 N.Y.S.2d 289). Had this matter been brought in the Supreme Court, that Court certainly would have applied the standards contained within the subject section of the Domestic Relations Law.
The New York Court of Appeals has held, in Matter of Steinberg v. Steinberg, 18 N.Y.2d 492, 277 N.Y.S.2d 129, 223 N.E.2d 558, that section 236 of the Domestic Relations Law is applicable to an action initiated in Family Court for support of a spouse. The Court reasoned that while section 236 is technically only applicable to actions for divorce, separation or annulment, it nevertheless...
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Cohen v. Seletsky
...Court and is authorized to determine the issue and make any disposition that the Supreme Court could have made" (see, Foster v. Foster, 122 Misc.2d 67, 69, 470 N.Y.S.2d 94; Matter of Robert T. v. Marcia T., 98 Misc.2d 557, 414 N.Y.S.2d 289). Since the Supreme Court is mandated to follow the......