MM v. MM
| Citation | 39 A.D.2d 995,333 N.Y.S.2d 581 |
| Parties | In the Matter of Aletha Butts 'MM' * , Respondent, v. Donald Melvin 'MM' *, Appellant. |
| Decision Date | 29 June 1972 |
| Court | New York Supreme Court Appellate Division |
Paul Taylor, Owego, for appellant.
Philip C. Learned, Elmira, for respondent (no appearance on the appeal).
Before STALEY, J.P., and GREENBLOTT, SWEENEY, SIMONS and REYNOLDS, JJ.
Appeal from an order of the Family Court, Chemung County, entered May 5, 1971.
The parties were divorced pursuant to a decree of divorce entered in Chemung County on or about December 15, 1969. On April 14, 1971 respondent petitioned the Family Court pursuant to section 454 of the Family Court Act for an order enforcing a support order charging appellant with the support of respondent, his ex-wife. On the same day appellant applied for a hearing in the proceeding which resulted in the support order, and also sought dismissal of the petition on the grounds that the Family Court had no jurisdiction. The Family Court denied appellant's motions and ordered appellant to pay the arrearages.
Appellant contends that the Family Court has no jurisdiction to entertain a support petition by an ex-wife. It is fundamental that the obligation of a husband to support his wife must be based upon a valid marriage. (Family Ct. Act, § 412; Matter of Carter v. Carter, 19 A.D.2d 513, 240 N.Y.S.2d 141.) Thus, jurisdiction of the court in a support proceeding brought by a former wife is always subject to attack on the ground that a valid divorce exists between the parties. (Matter of Carter v. Carter, Supra.)
The order appealed from arose out of an original petition in the Family Court to enforce the alimony provisions of the divorce decree. The divorce decree being silent as to which court had authority to enforce or modify the alimony provisions therein, the Family Court had jurisdiction to entertain the petition for enforcement of the alimony provisions. (Family Ct. Act, § 466.) The problem in this case is not the question of jurisdiction of the court, but the method by which the court sought to enforce the provisions of the decree. In attempting to enforce the decree, the Family Court resorted to the support provisions of article 4 of the Family Court Act, rather than to the statutory methods of enforcement of divorce decrees contained in the Domestic Relations Law. (Domestic Relations Law, §§ 244, 245.)
Since the obligation to support under section 412 of the Family Court Act is founded on the existence of...
To continue reading
Request your trial
-
Gardner v. Gardner
...the ground that a valid divorce exists between the parties. (Matter of Carter v. Carter, supra.)' (In the Matter of Aletha Butts 'MM' v. Donald Melvin 'MM', 39 A.D.2d 995, 333 N.Y.S.2d 581). 'The Family Court as an incident to the exercise of its jurisdiction may deny full faith and credit ......
-
Frankel v. Frankel
...marital relationship (see, Matter of Medici v. Medici, 53 Misc.2d 826, 827, 279 N.Y.S.2d 910; see also, Matter of Aletha Butts "MM" v. Donald Melvin "MM", 39 A.D.2d 995, 333 N.Y.S.2d 581; Matter of Russo v. Rizzo, 96 Misc.2d 485, 488, 409 N.Y.S.2d 101). By the same reasoning, if the divorce......
-
Walsh v. Walsh
...50 A.D.2d 701, 375 N.Y.S.2d 442 (3d Dept.1975); Levy v. Levy, 46 A.D.2d 876, 362 N.Y.S.2d 15 (1st Dept.1974); M.M. v. M. M., 39 A.D.2d 995, 333 N.Y.S.2d 581 (3d Dept.1972); Chapman v. Chapman, 28 A.D.2d 1028, 283 N.Y.S.2d 782 (3d Dept.1967); Elwell v. Sisson, 81 Misc.2d 1070, 367 N.Y.S.2d 7......
-
Proceeding for Support Under Article 4 of Family Court Act, Matter of
...In regard to Supreme Court decrees silent as to enforcement, the Appellate Division of the Third Department in MM v. MM, 39 A.D.2d 995, 333 N.Y.S.2d 581, determined that where the Family Court entertains the application of an ex-wife to enforce the alimony provisions of a divorce decree, th......