Infanto v. Infanto

• Citation: 66 Misc.2d 699,321 N.Y.S.2d 928
• Parties: * , Petitioner, v. Carmine INFANTO *, Respondent. Family Court, City of New York, Queens County
• Decision Date: 26 May 1971
• Court: New York City Court

Page 928

321 N.Y.S.2d 928

66 Misc.2d 699

In the Matter of a Proceeding for Support under Article 4 of the Family Court Act, Angela INFANTO^*, Petitioner, v. Carmine INFANTO *, Respondent.

Family Court, City of New York, Queens County.

May 26, 1971.

Dikman & Botter, Jamaica, for petitioner.

Finkelstein, Robinson & Rothenberg, New York City, for respondent.

DECISION AND ORDER

M. MICHAEL POTOKER, Judge.

The issue in the case at bar--one of first impression--involves the right of the Family Court to provide support for an ex-wife in the absence of a support provision for her in a final judgment of divorce.

The facts are not in dispute. The parties were married in 1939. In 1956 they entered into a separation agreement which was subsequently incorporated by reference into a Mexican divorce decree dated January 10, 1957. Neither party challenges the validity of the Mexican decree. While the agreement provided for child support it was silent with respect to support for the former wife. The issue of the parties are now emancipated.

Petitioner claims that at the time of the consummation of the separation agreement she was employable and able to support herself but that since that time there has been a change of circumstance in that she is no longer employed or able to otherwise support herself. She further alleges that in 1958 the parties resumed living together and continued to do so to the date of the filing of her petition on January 12, 1971 without benefit of marriage. She now seeks modification of said divorce decree under Sec. 466(c) of the Family Court Act so as to provide that respondent shall support and pay her the sum of $100.00 per week.

Respondent moves for dismissal on the ground that the Family Court is without jurisdiction to make an original support order for a former spouse.

Petitioner points to Calwil v. Calwil, 34 A.D.2d 535, 309 N.Y.S.2d 24 as being directly in point and urges that its application herein requires a denial of respondent's motion.

The Court fails to elicit from Calwil the principle of law maintained by petitioner. A careful perusal of Calwil reveals that it is dispositive only of the issue that under the General Obligation Law, Sec. 5--311 'A husband and wife cannot contract to alter or dissolve the marriage or to relieve the husband from his liability to support his wife * * *'. Petitioner therein commenced a proceeding in the Family Court to modify the support provisions of a Mexican decree of divorce obtained by her so as to provide for the two infant children of the parties and support for herself. By the terms of a pre-divorce separation agreement petitioner wife agreed not to demand any sums for alimony or support. She later obtained a Mexican decree of divorce in which the provisions of the agreement were incorporated, though the agreement itself was not merged therein.

The Family Court in Calwil allowed increased maintenance for the children as a result of demonstrated increased needs and no lack of ability on the part of respondent father to meet the added obligation. It denied any support for petitioner. Petitioner thereupon appealed to the Appellate Division which in Calwil v. Calwil, Supra, upheld her contention that the separation agreement was violative of Sec. 5--311 of the General Obligations Law and therefore invalid.

The Appellate Division had two alternatives to offer in resolution of the dispute. First, it could have modified the order with respect to support for petitioner. The Appellate Division has the power to make any findings warranted by the record (CPLR, Sec. 5501, subd. (c)). It refused to do so because 'the record before us does not permit of an informed determination equitable to both parties.' Calwil v. Calwil, 34 A.D.2d at 536, 309 N.Y.S.2d at 25, Supra. Secondly, the Appellate Court could have remitted the matter to the Family Court which significantly it did not do. The order of the Family Court was affirmed 'without prejudice to a renewal of the application (by petitioner for) of support if petitioner be so advised' (Id. at 535, 309 N.Y.S.2d at 24) without divulging the proper forum for such action. The right of the Family Court to enter an original order for alimony or support for an ex-wife was at no time an issue before the Appellate Division in the Calwil case.

Nor does this Court find any support for petitioner's contention in Calwil v. Calwil, 27 N.Y.2d 726, 314 N.Y.S.2d 534, 262 N.E.2d 674 or in Hummel v. Hummel, 62 Misc.2d 595, 309 N.Y.S.2d 429. In Calwil, the Court of Appeals dismissed respondent's motion for leave to appeal solely 'upon ground that appellant, not having appealed to Appellate Division, may not seek review of Appellate Division order of affirmance.'

In Hummel v. Hummel, 62 Misc.2d at 605, 309 N.Y.S.2d at 439, Supra, Justice Matthew M. Levy of the Supreme Court, New York County, makes the following reference in footnote no. 9 '* * * see Matter of Calwil v. Calwil, (34 A.D.2d 535) 309 N.Y.S.2d 24, as to the Family Court; * * *'. By no stretch of the imagination can this reference be taken as an indication that the Family Court is empowered to grant alimony by modifying a divorce decree which is silent on the matter.

The Family Court does have jurisdiction to modify or enforce a support order granted pursuant to a foreign divorce decree under the circumstances outlined in Section 466(c) of the Family Court Act which provides therein as follows:

'If the supreme court enters an order or decree granting alimony or support in an action for divorce, separation or annulment and if the supreme court does not exercise the authority given under paragraph (a) or (b) of this section; or if a court of competent jurisdiction not of the state of New York shall enter an order or decree granting alimony or support in any such action, the family court may

(i) entertain an application to enforce the order or decree granting alimony, or

(ii) entertain an application to modify the order or decree granting alimony on the ground that there has been a subsequent change of circumstances and that modification is required.'

Petitioner herein seeks modification, not enforcement. Ballentine, Law Dictionary, Second Edition defines modify as follows: 'The word implies no power to create or bring into existence, but only the power to change or vary in some particular an already created or legally existing thing. A power given to modify or abolish implies the existence of the subject matter to be modified or abolished. When exercised to modify, it does not destroy identity, but effects some change or qualification in form or qualities, power or duties, purposes or objects, of the subject matter to be modified.' See State v. Lawrence, 12 Or. 297, 7 P. 116.'

Since the divorce decree sought to be modified does not contain a support provision for petitioner the Family Court under 446(c) of the Family Court Act has nothing before it for modification. The non-existing subject matter herein is alimony. To modify the decree to the extent that alimony now be granted for the first time is to create or bring it into existence which in my opinion the Family Court lacks the power to do. Absent an order or decree of a court of competent jurisdiction which fixes alimony, there is nothing to modify, there is nothing to enforce.

Prior to the enactment of Section 466 of the Family Court Act, a woman, not in the relationship of wife, had no standing in the Family Court. The Court was without jurisdiction to entertain any application on behalf of one who was a former wife. Section 412 of the Family Court Act imposes the obligation of support only where there is the legal status of a wife (Glass v. Glass, 57 Misc.2d 76, 291 N.Y.S.2d 487; Travis v. Travis, 54 Misc.2d 575, 282 N.Y.S.2d 1001; Carter v. Carter, 19 A.D.2d 513, 240 N.Y.S.2d 141; Fishberg v. Fishberg, 16 A.D.2d 629, 226 N.Y.S.2d 855; Medici v. Medici, 53 Misc.2d 826, 279 N.Y.S.2d 910).

Section 466 of the Family Court Act opens up not only a new class of proceeding, but also opened up a new class of petitioner. The section aforementioned conferred jurisdiction on the Family Court to entertain support applications by one not a wife under the limited circumstances of the statute itself.

One not a wife, but who had been a wife, and for whom there had been a direction made in a Court of competent jurisdiction for support, could seek to enforce that provision or could seek to modify that provision.

The Family Court is a Court of limited jurisdiction and is confined in its actions to the powers granted to it by the precise language of the statute which creates it (Chapter 686 of the Laws of 1962--The Family Court Act). See comment by Arthur H....