Mercer v. Mercer

• Decision Date: 06 December 1966
• Parties: -Respondent, v. Nelson MERCER, Respondent-Appellant. Supreme Court, Appellate Division, First Department
• Court: New York Supreme Court — Appellate Division

Page 83

275 N.Y.S.2d 83

26 A.D.2d 450

In the Matter of a Proceeding for Support under Article 4 of

the Family Court Act, Frances MERCER, Petitioner-Respondent, v. Nelson MERCER, Respondent-Appellant.

Supreme Court, Appellate Division, First Department.

Dec. 6, 1966.

Stanley N. Kutcher, New York City, for appellant.

Patricia Zeserson, New York City, of counsel (Seymour B. Quel and Milton L. Platt, New York City, with her on the brief; J. Lee Rankin, Corp. Counsel), for petitioner-respondent.

Before BREITEL, J.P., and McNALLY, STEVENS, STEUER and CAPOZZOLI, JJ.

PER CURIAM.

Husband appeals from an order of the Family Court directing him to pay $78.50 semi-monthly to the Support Bureau of the Family Court. These sums will in turn be payable to the Department of Welfare in indemnification of similar payments made by the Department to appellant's wife, the petitioner herein, and to his step-child. The Department instituted this proceeding in the name of the wife pursuant to section 102 of the Social Welfare Law.

Two questions are presented: was it proper to order the husband to indemnify the Department for payments made for the support of his wife who had abandoned him, without proof that she is industrially incapacitated; and must the husband indemnity the Department for the support of his step-child without proof that her natural father is unable to furnish such support. It is concluded that the Family Court held correctly that both questions should be answered in the affirmative.

It is conceded that when the husband married the wife he knew that she had two daughters. Both children joined the marital household and the family remained together for approximately two years. During that time, the wife, who is a professional musician, continued to work. The relationship, however, disintegrated and in November of 1964, the wife left the husband, taking her two daughters.

The wife continued to work after the separation but when her older daughter, who had helped with expenses, left for school in Ohio and the wife was unable to find local work, she was forced to seek public assistance. The wife was unwilling to accept out-of-town bookings because she did not want to leave her remaining daughter, who was 14 years old. The Department paid the wife $78.50 in semi-monthly installments and instituted this proceeding in order to obtain indemnification from the husband. The Family Court issued an order finding that the wife is entitled to support from her husband on a public charge basis only and ordered the husband to indemnify the Department for any payments made by it to the wife.

The determination of the Family Court that the husband should indemnify the Department for its payments to the wife even though there is no proof that she is 'industrially incapacitated' comports with the purpose of the applicable statute and the facts of the case. Section 415 of the Family Court Act provides that certain named relatives of a recipient of public assistance are responsible for the support of such person and that a court may 'in its discretion' require 'any' such relative to contribute a 'fair and reasonable sum' for the support of the public charge. There is no statutory requirement that the recipient must be 'industrially incapacitated.' ^*

Such a condition would contravene one of the basic purposes of both the state and federal social welfare laws. The wife has explained that she has declined work which would require travel because she could not properly care for her child under those circumstances. Payments to the wife were made pursuant to section 343 et seq. of the Social Welfare Law, known as the 'Aid to Dependent Children' program. That program includes support for a...