Loeb v. Loeb
| Decision Date | 24 October 1961 |
| Citation | 14 A.D.2d 270,220 N.Y.S.2d 579 |
| Parties | Lena LOEB, Petitioner-Respondent, v. Richard LOEB, Respondent-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Marvin L. Levitt, New York City (Melvin J. Katz, New York City, on the brief), for respondent-appellant.
Robert L. Ellis, New York City, of counsel (Seymour B. Quel, New York City, on the brief; Leo A. Larkin, New York City Corporation Counsel) for petitioner-respondent.
Before BOTEIN, P. J., and BREITEL, RABIN, VALENTE, and EAGER, JJ.
Respondent-husband appeals from an order of the Domestic Relations Court which directed him to pay $1,210 for proposed necessary dental expenses on behalf of his wife.
The parties were married in 1947; and, in 1956, the wife obtained an order in the Domestic Relations Court requiring the husband to pay $50 per week on a means basis. Thereafter, in April, 1960, the wife moved to compel the husband to provide necessary dental care for her. After a hearing, it was found that the recommended dental program was necessary and that the reasonable cost would be $1,210.
In our opinion, the Family Court Division of the Domestic Relations Court of the City of New York had no jurisdiction to make the order appealed from. Section 91 of the Domestic Relations Court Act gives the Family Court jurisdiction to hear and determine all proceedings to compel the support of a wife, child or poor relative. Section 92 of the Act provides:
' § 92. Powers
'In the exercise of its jurisdiction the court shall have power
'(1) To order support of a wife or child or both, irrespective of whether either is likely to become a public charge, as justice requires having due regard to the circumstances of the respective parties.
'(2) To include in the requirements of an order for support the providing of necessary shelter, food, clothing, care, medical attention, expenses of confinement, the expense of educating his child, the payment of funeral expenses, and other proper and reasonable expenses.
The $50 per week is a limitation written into subdivision (3) of section 92 in 1933 (L.1933, ch. 482). Its purpose, as stated in 'Cannon' v. 'Cannon', 190 Misc. 677, 684, 72 N.Y.S.2d 225, 232, 'was to divert to the Supreme Court all matrimonial litigation where the husband-father might be in a position to pay more than $50 a week, to constitute the Family Court a so-called 'poor man's court,' and to circumscribe accordingly its concurrent jurisdiction with the Supreme Court.' Subdivision (3) of section 92 was subsequently amended so as to remove the limitation on the amount which the Court might award for the support of a wife who is pregnant or the mother of a child or children in her custody (L.1949, ch. 266).
We are, of course, not concerned with the wisdom of the legislation. Since the Supreme Court has no jurisdiction to decree support for a wife except as an adjunct to a matrimonial action, the Domestic Relations Court remains the only avenue by which a wife, not seeking divorce or separation, may obtain a support order. Where a husband can well afford to pay more than $50 per week, the limitation of $50 per week may seem an unrealistic restriction. Nevertheless, the legislature has seen fit to fix that ceiling; and attempts to amend the section to remove it have been unsuccessful (see ...
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