Langerman v. Langerman

CourtNew York Family Court
Citation203 Misc. 230
PartiesLenore Langerman, on Behalf of John W. Langerman and Another, Infants, Petitioner,<BR>v.<BR>Nathaniel Langerman, Respondent.
Decision Date17 October 1952

203 Misc. 230

Lenore Langerman, on Behalf of John W. Langerman and Another, Infants, Petitioner,
v.
Nathaniel Langerman, Respondent.

October 17, 1952.


Lester Gutterman, Joseph K. Reichbart and Irving Rappaport for petitioner.

Alfred Rathheim, Harold M. Hoffman and David L. Schreiber for respondent.

[203 Misc. 231]

BOLIN, J.

This proceeding is a sequel to litigation in the Second Judicial District Court of the State of Nevada, Washoe County, and the Supreme Court, Appellate Division, First Department, and Court of Appeals, of the State of New York. It involves the nature and extent of the exclusive jurisdiction of the Family Court to order support of children after a divorce of their parents procured outside of the State of New York (see Helman v. Helman, 190 Misc. 991).

On December 16, 1948, that Nevada court granted to the mother of John Walter Langerman, born August 14, 1943, and Diane Frances Langerman, born November 6, 1945, a decree of absolute divorce from the father (respondent herein) upon his appearance by attorney, and awarded her the custody of those children and alimony and support in accordance with prior separation agreements approved and incorporated in that decree, namely, for the wife's "separate maintenance, support,

[203 Misc. 232]

use and benefit" $125 per week and for the "separate maintenance, support and education" of each child during minority $25 per week and all medical expenses.

It is conceded that respondent has complied with the directions of that decree, and also that he has contributed to the children voluntarily from time to time additional cash value benefits which in 1951 approximated $2,300.

However, on the assertion that the aggregate of such decreed payments and other contributions had been inadequate for the children's needs and below the standard maintained for them during the marriage and also the standard which the father is still well able to afford by reason of his wealth and annual income, during July, 1950, the mother as guardian ad litem instituted in the children's behalf an action against the father in the Supreme Court, New York County, to compel him to contribute a total of at least $100 per week for the support and maintenance of each of the minor plaintiffs. But a judgment dismissing the complaint in that action for lack of subject-matter jurisdiction was entered at Special Term on August 18, 1950, and such dismissal was affirmed unanimously by the New York Court of Appeals on March 6, 1952 (Langerman v. Langerman, 303 N.Y. 465).

The basis for the decision was that the matrimonial jurisdiction of the Supreme Court of the State of New York is wholly statutory, that such court has been clothed with power to order support only as an incident of a matrimonial action there, and that for the support of children of parents divorced by judgment outside of the State of New York the Legislature has conferred jurisdiction in New York City exclusively upon the Family Court Division of this court. Thus, the unanimous opinion states: "The only provisions for compelling future support of a child, who is a resident of New York City, where a nonmarital proceeding is brought for that sole purpose are contained in the Domestic Relations Court Act of the City of New York." (303 N.Y. 465, 472.) Moreover, that reasoning applies equally to a proceeding in which the father respondent resides in New York City and the children elsewhere. (See Adams v. Adams, 272 App. Div. 29, and "Buenos" v. "Buenos," 189 Misc. 262; cf. "Almandares" v. "Almandares," 186 Misc. 667, and Matter of "Morgan" v. "Morgan," 187 Misc. 714.)

Accordingly, on June 5, 1952, the mother filed in this Family Court in the children's behalf a support petition under the

[203 Misc. 233]

Domestic Relations Court Act of the City of New York (§ 29, subd. 2; § 91, subd. [1]; § 92, subds. [1]-[4]; § 101, subd. 1; § 103, subd. 1; § 111).

Because respondent resides in New York City and has appeared generally by attorney, it is unquestionable that this Family Court has jurisdiction to enter its order for the prospective support of those children upon proof of the allegation of the petition that respondent has heretofore refused and neglected to provide "fair and reasonable support according to his means and earning capacity" (Langerman v. Langerman, 303 N.Y. 465, supra; Helman v. Helman, 190 Misc. 991, supra; Schacht v. Schacht, 58 N. Y. S. 2d 54, 187 Misc. 461).

It is also unquestionable that the figure in the Nevada decree is not binding on those children but that they are entitled to support from their father in whatever amount this court may adjudge from time to time to be a "fair and reasonable sum according to his means" (N. Y. City Dom. Rel. Ct. Act, § 101, subd. 1; Matter of Karchmer v. Kane, 275 App. Div. 715; Scrima v. Scrima, 265 App. Div. 483; Stone v. Stone, 44 N. Y. S. 2d 558; Schacht v. Schacht, 58 N. Y. S. 2d 54, 187 Misc. 461, supra; Mallina v. Mallina, 167 Misc. 343). That principle in fact, is the "law of the case" in respect of the Langerman children; for the New York Court of Appeals expressly ruled that inasmuch as there is a Nevada statute permitting the Nevada divorce court to modify its original support awards, the full faith and credit clause of the Federal Constitution does not preclude New York courts from granting to the children support in an amount exceeding the original Nevada decree award and that a proceeding for that purpose may be brought in the Domestic Relations Court of the City of New York (Langerman v. Langerman, 303 N.Y. 465, 473 supra).

Another undisputed and controlling doctrine is that the primary duty of support of minor offspring is cast on the father, regardless of any resources of the mother, and that such duty is measured by the child's needs in relation to the father's ability to provide and station in life (see Schacht v. Schacht, 187 Misc. 461, supra, and cases cited; "Zunder" v. "Zunder," 187 Misc. 557; cf. Young v. Valentine, 177 N.Y. 347, 352).

Nevertheless, respondent demands that the petition be dismissed on two asserted but untenable grounds: first, subdivision (3) of section 92 of the New York City Domestic Relations Court Act limits the maximum order this court may enter to $50 a week for both children and that amount is less than what

[203 Misc. 234]

respondent has already been contributing; and secondly, in any event respondent has been furnishing support in a "fair and...

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18 practice notes
  • K. v. K.
    • United States
    • New York City Court
    • September 30, 1975
    ...of an agreement but even in the absence of a change of circumstances. See Langerman v. Langerman, 303 N.Y. 465, 468, 104 N.E.2d 857, 858; 203 Misc. 230, 116 N.Y.S.2d 420, Dom.Rels.Ct., N.Y.C.) 1 2. Child's Private Academic School and Religious School Tuition A child's private-school tuition......
  • Kern v. Kern
    • United States
    • New York City Court
    • December 4, 1970
    ...respondent's income, but also his capital assets and a certain trust fund of which he is beneficiary. Page 185 In Langerman v. Langerman, 203 Misc. 230, 116 N.Y.S.2d 420, the court held that the proceeds from a life insurance policy, generally constituting a non-recurring item, must neverth......
  • Magrill v. Magrill
    • United States
    • New York Supreme Court — Appellate Term
    • January 20, 1959
    ...disappears when one considers that the father's obligation to support his child remains pursuant to law. Langerman v. Langerman, 203 Misc. 230, 116 N.Y.S.2d 420; Matter of Pinto, 203 Misc. 244, 117 N.Y.S.2d 844. As was observed by Mr. Justice Martin M. Frank, now an Associate Justice of the......
  • Goldberg v. Goldberg
    • United States
    • New York City Court
    • June 26, 1968
    ...v. Van Dyke, 305 N.Y. 671, 112 N.E.2d 766; People ex rel. Jones v. Johnson, 205 App.Div. 190, 199 N.Y.S. 695; Langerman v. Langerman, 203 Misc. 230, 116 N.Y.S.2d 420; People of State of N.Y. ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133). Their rights are adequately pr......
  • Request a trial to view additional results
18 cases
  • K. v. K.
    • United States
    • New York City Court
    • September 30, 1975
    ...of an agreement but even in the absence of a change of circumstances. See Langerman v. Langerman, 303 N.Y. 465, 468, 104 N.E.2d 857, 858; 203 Misc. 230, 116 N.Y.S.2d 420, Dom.Rels.Ct., N.Y.C.) 1 2. Child's Private Academic School and Religious School Tuition A child's private-school tuition......
  • Kern v. Kern
    • United States
    • New York City Court
    • December 4, 1970
    ...respondent's income, but also his capital assets and a certain trust fund of which he is beneficiary. Page 185 In Langerman v. Langerman, 203 Misc. 230, 116 N.Y.S.2d 420, the court held that the proceeds from a life insurance policy, generally constituting a non-recurring item, must neverth......
  • Magrill v. Magrill
    • United States
    • New York Supreme Court — Appellate Term
    • January 20, 1959
    ...disappears when one considers that the father's obligation to support his child remains pursuant to law. Langerman v. Langerman, 203 Misc. 230, 116 N.Y.S.2d 420; Matter of Pinto, 203 Misc. 244, 117 N.Y.S.2d 844. As was observed by Mr. Justice Martin M. Frank, now an Associate Justice of the......
  • Goldberg v. Goldberg
    • United States
    • New York City Court
    • June 26, 1968
    ...v. Van Dyke, 305 N.Y. 671, 112 N.E.2d 766; People ex rel. Jones v. Johnson, 205 App.Div. 190, 199 N.Y.S. 695; Langerman v. Langerman, 203 Misc. 230, 116 N.Y.S.2d 420; People of State of N.Y. ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133). Their rights are adequately pr......
  • Request a trial to view additional results

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