Matthews v. Matthews

• Decision Date: 15 November 1961
• Citation: 30 Misc.2d 681,222 N.Y.S.2d 31
• Parties: Dorothea K. MATTHEWS v. Mark MATTHEWS, also known as Mac Marcus, also known as Marcus Schussheim, also known as Joseph Matthews.
• Court: New York Supreme Court

Page 31

222 N.Y.S.2d 31

30 Misc.2d 681

Dorothea K. MATTHEWS v. Mark MATTHEWS, also known as Mac Marcus, also known as Marcus Schussheim, also known as Joseph Matthews.

Supreme Court, Trial Term, Nassau County, Part VII.

Nov. 15, 1961.

Pitaro, Digangi & Gallagher, Forest Hills, for plaintiff, Vincent L. Pitaro, Forest Hills, of counsel.

George Naiman, New York City, for defendant.

ANTHONY M. LIVOTI, Justice.

This action was tried before this court without a jury upon a stipulation of facts made by parties in open court. Plaintiff moved (1) to dismiss defendant's first affirmative defense of no jurisdiction, (2) to dismiss defendant's second affirmative defense of res judicata, and (3) for leave to amend the complaint pursuant to notice served by increasing the amount request for legal expenses from $10,000 to $15,000.

This is an action instituted by the plaintiff as guardian ad litem of her infant children, Nancy and Jane Matthews, for necessaries consisting of (1) counsel fees, (2) accounting fees, (3) guardian fees and disbursements for services rendered to the said infants in conjunction with a support proceeding under the Children's Court Act of the State of New York (Sections 30, 30-a) against the defendant commenced in the Children's Court of Nassau County, which was necessitated by the fact that the defendant, who alleges to be a resident of the State of Florida and who has been absent from the State of New York for over ten years, failed to support his infant children in accordance with his financial means and ability.

The court has examined the voluminous files of the proceedings had in the Children's Court, the Supreme Court and the appellate courts, 15 Misc.2d 419; 182 N.Y.S.2d 44; 11 A.D.2d 813, 205 N.Y.S.2d 272; 9 N.Y.2d 790, 215 N.Y.S.2d 501, 175 N.E.2d 161; 23 Misc.2d 320, 202 N.Y.S.2d 625; 27 Misc.2d 548, 212 N.Y.S.2d 849; 14 A.D.2d 546, 217 N.Y.S.2d 736, all of which indicate that the said services rendered were necessary and proper for the protection of the said infants, in which procedures the plaintiff acted in good faith and with due regard to the best interests of the infants, and which actions were justifiable. The proceedings in the Children's Court resulted in an increase of support for the said infants from $200 per month to $750 per month, plus extraordinary medical and dental expenses which the defendant herein is now compelled to pay. By a further decision rendered from the Bench in the Children's Court of Nassau County on October 25, 1961, the defendant is compelled to pay, in addition to the $750 per month support, the sum of $2,500 per college year, commencing with the 1960/61 school year, for the college expenses of the infant Nancy (16 New York Jurisprudence, Dom .Rel. Sec. 662, pp. 213, 214; International Textbook Co. v. Connelly, 206 N.Y. 188, 195, 99 N.E. 722, 725, 42 L.R.A.,N.S., 1115.) This was the result of an appeal from an order of the Children's Court of Nassau County entered on February 7, 1961, when denied plaintiff's application to direct defendant to defray the college expenses of said infant. Said appeal was taken by plaintiff to the Special Term of the Supreme Court (27 Misc.2d 548, 212 N.Y.S.2d 849) and to the Appellate Division (14 A.D.2d 546, 217 N.Y.S.2d 736) which reversed said order of the Children's Court of February 7, 1961.

The defendant challenges the instant action by interposing the following affirmative defenses: First, alleges defense of no jurisdiction in that when defendant was served with summons he was immune as he was in the jurisdiction as a voluntary witness; and second, alleges defense of res judicata in that the Children's Court already refused to allow plaintiff legal and accounting expenses and disbursements and guardian ad litem fees .

The plaintiff, by motion herein, seeks to dismiss defendant's first and second affirmative defenses.

As to the first affirmative defense of defendant's amended answer, the summons in this action was served upon the defendant as he was leaving the Courthouse on the date of the final hearing in the Children's Court on May 15, 1959. At the time defendant was served with the summons, he was attending the Children's Court as a respondent who was commanded to appear pursuant to a bail bond. Hence his appearance was compulsory and not voluntary (Rosenblatt v. Rosenblatt, 110 Misc. 525, 180 N.Y.S. 463; 20 A.L.R.2d 171, 175.) As was stated by Cardozo, Ch. J., in People ex rel. Wolfe v. Johnson, (230 N.Y. 256, 259, 130 N.E. 286, 287), 'The constructive custody of the bail becomes, in such circumstances, the equivalent of the actual custody of the sheriff. (Taylor v. Taintor, 16 Wall. 366, 371, 21 L.Ed. 287.)' Defendant being in this jurisdiction under compulsion by law, the privilege from liability for other criminal and civil prosecution which attaches to those who voluntarily come within the jurisdiction of the court does not apply . (Dwelle v. Allen, 151 App.Div. 717, 136 N.Y.S. 216; Netograph Mfg . Co. v. Scrugham, 197 N.Y. 377, 90 N.E. 962, 27 L.R.A.,N.S., 333; 20 A.L.R.2d 178.) Accordingly, the plaintiff's motion to dismiss defendant's first affirmative defense contained in paragraphs 'Eighth', 'Ninth', 'Tenth', 'Eleventh' and 'Twelfth' of the defendant's amended answer is granted.

As to the plaintiff's motion to dismiss defendant's second affirmative defense of defendant's amended answer constituting the defense of res judicata in that the Children's Court already refused to allow plaintiff legal and accounting expenses and disbursements and guardian ad litem fees, it is well-settled law that the orders of the Children's Court are not res judicata on questions of nonsupport. The orders of the Children's Court in support proceedings are not conclusive on the issue of nonsupport but may be considered with other evidence in the determination of such issues. (Gelardi v. Gelardi, 205 Misc. 348, 127 N.Y.S.2d 802; Loomis v. Loomis, 288 N.Y. 222, 42 N.E.2d 495, 147 A.L.R. 183.) As a court of limited jurisdiction, the powers and jurisdiction of the Children's Court must be found within the precise language of the statutes creating them and it follows that the court has only such powers and such jurisdiction as is specifically conferred upon it by statute. (Matter of Hagadorn et al., 11 Misc.2d 51, 171 N.Y.S.2d 433.) The establishment of the Children's Court is authorized by Article VI, section 18 of the New York State Constitution which provides, in part: 'The legislature may establish children's courts, and courts of domestic relations, as separate courts, or as parts of existing courts or courts hereafter to be created, and may confer upon them such jurisdiction as may be necessary * * * and to compel the support of a wife, child, or poor relative by persons legally chargeable therewith who abandon or neglect to support any of them.'

Section 30-a of the Children's Court Act enumerates the statutory powers of the Children's Court. Section 92 of the Domestic Relations Court Act of the City of New York enumerates the statutory powers of said court, which, in substance, are similar to section 30-a of the Children's Court Act. However, although the legislature by chapter 342 of the Laws of 1958 amended section 131 of the Domestic Relations Court Act of the City of New York by granting the said court power in its discretion to allow counsel fees to the attorney representing the wife against the husband in any hearing or trial of support proceeding under section 92, it did not grant any power whatsoever to the Children's Court to do likewise. Further, by chapter 213 of the Laws of 1961, effective April 3, 1961, said section 131 of the Domestic Relations Court Act of the City of New York was amended to provide for counsel fees for wife in proceedings for herself and her children, 'or by her on behalf of her children only.' (Italics supplied.) Hence, it is crystal clear that the Children's Court was and is whether necessary statutory authority as granted to the Domestic Relations Court by chapter 342 of the Laws of 1958 and by chapter 213 of the Laws of 1961, to allow counsel fees, etc. to the attorney representing the plaintiff, on behalf of her children, in said proceedings. Accordingly, the plaintiff's motion to dismiss defendant's second affirmative defense consisting of paragraphs 'Thirteenth', 'Fourteenth', 'Fifteenth', 'sixteenth', 'Seventeenth', 'Eighteenth', 'Nineteenth', 'Twentieth' and 'Twenty-First' of the amended answer, is granted.

The instant action brought by the plaintiff, the defendant's former wife, is not brought to recover any money for herself, but is brought for the benefit of and in behalf of the infant children. The husband (defendant herein) has not been divorced by his children, nor absolved of...