MATTER OF HERBERT v. Herbert
| Decision Date | 10 May 1950 |
| Citation | 198 Misc. 103 |
| Parties | In the Matter of Dorothy H. Herbert, on Behalf of Barbara G. Herbert and Another, Infants, Petitioner,<BR>v.<BR>Alan N. Herbert, Respondent. |
| Court | New York Supreme Court |
Lipper, Shinn & Neeley for petitioner.
Barnett J. Nova and Gerald D. Broder for respondent.
The petitioner and respondent are the parents of two minor children, issue of their marriage. Petitioner, their mother, brings this proceeding on their behalf and for their benefit.
It appears that on January 20, 1939, petitioner obtained a final decree of divorce against respondent in the Circuit Court, Eleventh Judicial District, Dade County, Florida. The decree awarded to petitioner the care, custody and control of the children and they have been in her custody up to the present time. Pursuant to the decree, respondent is paying for the maintenance, support and education of the children the sum of $166.67 per month.
Petitioner alleges that at the time said decree was entered the income of respondent was $12,000 per annum; that at the present time respondent's income is in excess of $40,000 per year, and that since 1939 respondent has become possessed of and is presently the owner and holder of substantial capital assets, and petitioner avers that the said sum of $166.67, which respondent is now paying, is inadequate to properly maintain the children; that their needs and expenses have greatly increased since 1939 and that the sum required for their needs, including educational requirements, for each child exceeds $425 per month.
It is further alleged that respondent has refused to grant any increase and petitioner therefore seeks an order from this court increasing the sum for the support, maintenance and education of the children to at least the sum of $425 per month.
Respondent, answering, states, and it is unquestioned, that he has at all times complied with the decree in providing the required support and maintenance as therein directed, and makes the contention that this court is without jurisdiction, either in law or equity, to entertain this proceeding so long as he complies with the said Florida decree of divorce. Respondent advances the additional claim that a prior plenary suit brought by petitioner, as plaintiff, against respondent, as defendant, for similar relief, resulting in a dismissal of the complaint (Golwynne v. Herbert, 192 Misc. 784, affd. 276 App. Div. 890), and is res judicata of the present proceeding.
As I have reached the ultimate conclusion that the first contention is meritorious and sound, there is no need to determine the tenability of the claim of res judicata.
As has been mentioned, respondent contends that this court is without jurisdiction to entertain the instant application for an increase in support and maintenance of the children.
In answer to this challenge to jurisdiction, the argument is advanced in petitioner's brief that unless this court grants relief there is no court in the United States that the children or petitioner can go to to compel respondent to pay increased support for the children.
It is rather difficult to understand how this constitutes an answer to a question of law involving want of jurisdiction, and were this the sole ground upon which petitioner rested, it would warrant and justify abrupt dismissal.
Petitioner, however, places much reliance to support the instant proceeding upon People ex rel. Halvey v. Halvey (185 Misc. 52, affd. 269 App. Div. 1019, affd. 295 N.Y. 836, affd. 330 U. S. 610) and asserts that this case is definite authority to the effect that this court possesses jurisdiction to make the order applied for upon such a state of facts as is present here.
An examination of that case discloses that no such question as is involved at bar was involved or decided in the Halvey case (supra); that case concerned the question of custody of a child, and not support and maintenance. The court there held that though a foreign judgment awarding custody is binding on the parties as a conclusive determination of the rights to custody at the time when made, the courts of this State may, nonetheless, change the custodial provisions where changed circumstances arise to suit the...
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Burns v. Burns
...888, app. dismissed 4 N.Y.2d 872, 174 N.Y.S.2d 241, 150 N.E.2d 710; Moen v. Thompson, 186 Misc. 647, 61 N.Y.S.2d 257; Herbert v. Herbert, 198 Misc. 103, 97 N.Y.S.2d 572; Steinhauser v. Steinhauser, 5 Misc.2d 539, 158 N.Y.S.2d The result was that prior to September 1, 1962 the Domestic Relat......