Friedmann v. Depicolzuane

• Decision Date: 16 November 1960
• Citation: 28 Misc.2d 129,210 N.Y.S.2d 464
• Parties: In the Matter of William FRIEDMANN, Attorney o/b/o Maria Depicolzuane, et al., Petitioner, v. Giovanni DEPICOLZUANE, Respondent.
• Court: New York Domestic Relations Court

Page 464

210 N.Y.S.2d 464

28 Misc.2d 129

In the Matter of William FRIEDMANN, Attorney o/b/o Maria

Depicolzuane, et al., Petitioner, v. Giovanni DEPICOLZUANE, Respondent.

Domestic Relations Court of the City of New York, Family

Court Division, New York County.

Nov. 16, 1960.

O'Brien, Driscoll & Raftery, New York City (William D. Friedmann, New York City, of counsel), for petitioner.

Rolland W. Dague, New York City, for respondent.

PATRICK J. FOGARTY, Justice.

The petition seeks support for respondent's wife and child who had come over and lived with respondent in New York, but who have now returned to Italy where they reside. Respondent, residing in New York appears specially, contesting the jurisdiction of this court to entertain the petition.

Sec. 91, N.Y.City Dom.Rel.Court Act, entitled 'Jurisdiction', provides:

'The family court shall have

'(1) Jurisdiction within the city to hear and determine all proceedings to compel the support of a wife, child * * *.'

Sec. 101, entitled 'Legal liability for support', places the liability for such support in the first instance upon the husband, according to his means. Sec. 102 provides for punishment for failure to support. Sec. 103, entitled 'Residential jurisdiction', reads in part as follows:

'1. A husband * * * may be required to furnish support * * * as provided in the two preceding sections, if (a) he * * * is residing or domiciled in the city at the time of the filing of the petition for support * * *.'

The foregoing sections evidence the statutory jurisdiction of this court to entertain the petition at Bar, by reason of the respondent residing in New York City.

In Morgan v. Morgan, Children's Court, Westchester, 1946, 187 Misc. 714, 64 N.Y.S.2d 236, Smythe, J., under a similar State statute, jurisdiction was found to order means support on the petition of a non-resident wife with whom the minor child resided.

In Almandares v. Almandares, N.Y.City Dom.Rel.Ct.1948, 186 Misc. 667, 60 N.Y.S.2d 164, Sicher, J., this court found it had the power to continue its order for support after the wife left the State with the child.

Buenos v. Buenos, N.Y.City Dom.Rel.Ct., Bronx 1947, 189 Misc. 262, 69 N.Y.S.2d 14, Sicher, J., involved the question of the power of this court, having once ordered support for the wife and children, to continue the order after petitioner informed the court she had returned to Puerto Rico and intended to reside there permanently. Citing the Morgan case (supra), and Adams v. Adams, 1947, 272 App.Div. 29, 68 N.Y.S.2d 294, this court held that if respondent resides in New York, it had jurisdiction to entertain support order for non-residents, in its discretion. In Barclay v. Marston (a. k. a. Anonymous v. Anonymous), 1953, 204 Misc. 656, 123 N.Y.S.2d 196, affirmed without opinion 283 App.Div. 658, 127 N.Y.S.2d 842 (case 1) a means order for support of a child who resided in Illinois with mother was upheld.

In Landes v. Landes, 1 N.Y.2d 358, 153 N.Y.S.2d 14, a wife who had been divorced and remarried and lived in California with her new husband, petitioned there for support of the child of the previous marriage and, pursuant to the Uniform Reciprocal Support Act, enforcement of the California...