Lewis v. Lewis

• Decision Date: 26 March 1956
• Citation: 2 Misc.2d 849,151 N.Y.S.2d 894
• Parties: Appeal from an order of the Children's Court of Nassau County, in the Matter of Audrey LEWIS, Respondent (Petitioner) v. Edward LEWIS, Appellant (Respondent).
• Court: New York Supreme Court

Page 894

151 N.Y.S.2d 894

2 Misc.2d 849

Appeal from an order of the Children's Court of Nassau County, in the Matter of Audrey LEWIS, Respondent (Petitioner) v. Edward LEWIS, Appellant (Respondent).

Supreme Court, Special Term, Nassau County, Part I.

March 26, 1956.

Otto B. Schmidt, New York City, for appellant Edward Lewis.

Joseph D. Stim, Plainview, for petitioner-respondent.

HILL, Justice.

This is an appeal from an order of the Children's Court, Nassau County, dated December 8, 1955, directing appellant to support the two children of the parties, aged eight and ten years respectively, now living with respondent, formerly the wife of appellant.

The facts, with few unimportant exceptions, are not in dispute. On May 4, 1955, the parties, then husband and wife, living apart, entered into a separation agreement. One of the provisions thereof required that the father pay $150 monthly for the support of the two children, nothing for the support of the wife. Thereafter, and on May 9, 1955, a judgment of absolute divorce was entered in the Circuit Court, Tenth Judicial District, State of Alabama, wherein the wife in this proceeding was the complainant, the husband the respondent. The separation agreement dated May 4, 1955, was made a part of the Alabama judgment. Petitioner, thereafter, returned to Nassau County, New York, where she again took up residence with the two children and on November 11, 1955 brought on this proceeding by information.

After a trial of the issues by the Children's Court judge, an order was entered in the Children's Court requiring the appellant to pay $300 per month for the support of the two children.

Appellant bases his appeal on two points. First, that the Children's Court lacked jurisdiction to make the order appealed from in the absence of a showing that the children were delinquent, neglected or likely to become a public charge. Such has not been shown in this case. Second, that $3,600 per year out of an annual income of $9,000 gross per year (appellant's income) is excessive and unreasonable.

There can be no question as to jurisdiction of the Children's Court. The Children's Court of the State of New York possesses jurisdiction to order support of an infant by virtue of its creating act.

' § 6. Jurisdiction

* * *

* * *

'2. Adults. (a) Whenever the welfare of a child under the jurisdiction of the court is involved, the children's court in each county shall have within such county exclusive original jurisdiction, subject to the jurisdiction of a court of record in a civil action or proceeding, to inquire into, hear and determine the liability of any person who abuses, neglects or wilfully fails to provide for the proper maintenance of his wife or child, * * *.'

This power of the Children's Court is independent of that of the Supreme Court in matrimonial matters and has been broadly exercised ' § 33-i. Divorces; separations; annulments

'Where a divorce, separation or annulment has been granted by the supreme court or a suit for such relief is pending and the respondent has been required under the terms of any order or decree entered in such separation, divorce or annulment proceeding to pay a specified sum to the dependent as alimony or maintenance and has failed to do so, that fact shall not be a bar to a proceeding in this court to compel support within the limits of the order of the supreme court and as set forth by section thirty-a of this article, provided that the respondent is not in jail for failure to obey the order of the supreme court. An action for divorce, separation or annulment pending in the supreme court shall not prevent this court from entertaining a petition for support if it is shown to the satisfaction of this court that the dependent is likely to become a public charge. After final adjudication by the supreme court denying alimony in a separation action, if in the opinion of this court the circumstances of the parties have changed or if it is shown to the satisfaction of this court that the dependent is likely to become a public charge, this court may entertain a petition for support. A separation agreement shall in no way preclude the filing of a petition for the support of a minor or the making of an order for its support by this court. As amended L.1945, c. 849, § 7, eff. April 18, 1945.'

Harless v. Harless, 192 Misc. 5, 80 N.Y.S.2d 98; Langerman v. Langerman, 303 N.Y. 465, 104 N.E.2d 857; Maxim v. Maxim, 203 Misc. 610, 118 N.Y.S.2d 541; Matter of Pinto, 203 Misc. 244, 245, 117 N.Y.S.2d 844, 845; Geiger v. Geiger, Sup., 140 N.Y.S.2d 228.

In Langerman v. Langerman, supra, the Court of Appeals held that the Supreme Court had no inherent jurisdiction to compel support of children. Jurisdiction of the court in matrimonial actions is a creation of statute. The court acquires jurisdiction to compel support as an incident to matrimonial actions. The court decided that the Domestic Relations Court had sole jurisdiction of an action brought for support of children. In Nassau County this by implication would be the Children's Court.

'Children's Court Act'.

' § 30-a. Powers

'In the exercise of its jurisdiction the court shall have power: 1. To order support of a wife and child irrespective of whether either is lirely to become a public charge, as justice requires having due regard to the circumstances of the respective parties.' (Emphasis mine.)

The obligation of a father to support his children has been enforced since time immemorial. On April 10, 1922, when the Children's Court Act became the law in New York, subd. 1 of sec. 31 of that act declared a husband chargeable with the support of his children; the mother is not chargeable with support in the absence of proof that the father is dead or incapable of supporting his children or cannot be found within the state. The Children's Court, however, has no jurisdiction to amend support provisions of a local or foreign divorce decree.

Amendment of support provisions of a local divorce decree is a customary power in state courts, by statute (e. g. Civil Practice Act §§ 1155, 1170). Amendment of foreign decrees, by a local court, is permissible within the limits of the full faith and credit clause, if courts of the state of origin possess power to amend their own decree. Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 64 S.Ct. 208, 88 L.Ed. 149; People of State of New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133.

In Snyder v. Snyder, Sup., 72 N.Y.S.2d 881, 882,...