Martin v. Sparks

• Decision Date: 23 October 1951
• Citation: 202 Misc. 581
• Parties: "Florence Martin", on Behalf of "John Sparks" and Another, Petitioner,<BR>v.<BR>"Fred Sparks", Respondent.<SUP><A onclick=scife_fn_clicked(); href="#[1]" name=r[1]>[†]</A></SUP>
• Court: New York Family Court

202 Misc. 581

"Florence Martin", on Behalf of "John Sparks" and Another, Petitioner,

v."Fred Sparks", Respondent.^{[†]}

October 23, 1951.

Murray Feldman for petitioner.

Robert G. Peters for respondent.

BOLIN, J.

There is squarely presented for determination the recurrent question whether this court has the power to enter an order for support of minor children of divorced parents in a sum exceeding the amount awarded in a New York Supreme Court final divorce judgment.

For the following reasons I am reluctantly constrained to answer that question in the negative.

In February, 1943, there was entered in the Supreme Court, Bronx County, a final judgment of divorce, in favor of the mother and against the father of John and Ruth Miriam Sparks, which granted custody to the mother and directed the father to pay toward their support, education and maintenance $8 per week.

That nominal sum was predicated on the father's then earning of only $27 per week; and because his current net earnings have now allegedly risen to at least $91 per week and the children are eight years older, this court has been petitioned to enter an order requiring him to pay, instead, a minimum of $35 per week.

It is axiomatic that this is a statutory court having solely the enumerated powers expressly conferred by Domestic Relations Court Act of the City of New York (L. 1933, ch. 482, as amd.). Those powers include "Jurisdiction within the city to hear and determine all proceedings to compel the support of a wife, child or poor relative" (N. Y. City Dom. Rel. Ct. Act, § 91, subd. 1) and "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" (N. Y. City Dom. Rel. Ct. Act, § 92, subd. 1). However, because the Supreme Court of the State of New York also possesses statutory jurisdiction to order support as an incident to a matrimonial action (Erkenbrach v. Erkenbrach, 96 N.Y. 456; Johnson v. Johnson, 206 N.Y. 561; Caldwell v. Caldwell, 298 N.Y. 146), section 137 of the Domestic Relations Court Act, has since its inception imposed certain limits on the exercise of the concurrent support jurisdiction of the Domestic Relations Court of the City of New York.

Prior to the below-described 1942 amendment, that section had read: "§ 137. Divorces; separations; annulments, et cetera. Where a divorce, separation or annulment has been granted to the petitioner 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 petitioner or her children as alimony or maintenance and has failed to do so, that fact shall not be a bar to a proceeding in the family court to compel support within the limits of the order of the supreme court and as set forth by section ninety-two of this act, provided that the respondent is not in jail for failure to obey the order of the supreme court".

The foregoing language clearly specified that in the event of a violation of an order or decree entered in a Supreme Court of the State of New York action for divorce, as well as in one for separation or annulment, the Family Court would have jurisdiction to make an order compelling support only within the limits of that Supreme Court direction.

By chapter 762 of the Laws of 1942, effective May 11, 1942, section 137 of the Domestic Relations Court Act of the City of New York was amended to read, insofar as pertinent:

"1. If the marriage relationship shall have been terminated by final decree of the supreme court of the state of New York or by judgment of any other court of competent jurisdiction, when valid in the state of New York, a petition may be filed or an order for support made or enforced in the family court only for the benefit of a child of such marriage.

"2. Where a separation has been granted by the supreme court of the state of New York to either spouse or an action for divorce, separation, annulment or dissolution is pending, and the husband or father shall have been required under the terms of any order or decree entered in such supreme court action, to pay a specified sum to the spouse or for her child or children as alimony or maintenance and has failed to do so, a proceeding may be instituted in the family court to compel support within the limits of the order or decree of the supreme court and as set forth by section ninety-two of this act, unless the respondent is in jail for failure to obey the order of the supreme court. In the absence of an order of the supreme court in such action providing for support of a child or children up to the age of seventeen years, the family court may entertain a petition for the support of such child or children."

In petitioner's behalf it is speciously argued that the intent and result of such amendment were to exempt Family Court orders for support of children of divorced parents from the earlier restrictive clause "within the limits of the order of the supreme court".

In the first place, that argument disregards the history and actual purpose of such amendment, namely, to remove all doubt as to the Family Court's lack of jurisdiction to entertain a new proceeding for support of a former wife or to continue in her behalf a previous Family Court support order after the date of the entry of a binding final divorce judgment.

"The sentence just quoted, particularly the words `where a divorce, separation or annulment has been granted to the petitioner' left open to doubt whether an order could be made or continued for support of a former wife who had procured a final judgment of divorce or annulment and an award therein of alimony which was not being paid * * *.

"So, to resolve any possible doubt by providing expressly that there could be...