Proceeding for Support Under Article 4 of Family Court Act, Matter of

Citation89 Misc.2d 1052,393 N.Y.S.2d 523
Parties. Alma HENDRICKS, * Petitioner, v. Daniel HENDRICKS, * Respondent. Family Court, Onondaga County
Decision Date28 March 1977
CourtNew York Family Court

Edward B. Alderman, Syracuse, for petitioner.

Charles J. Engel, Sr., Syracuse, for respondent.

FACTS

EDWARD J. McLAUGHLIN, Judge.

On September 24, 1976, a petition was filed in this Court by Petitioner, requesting this Court to compel her former husband, the Respondent, to show cause why he should not execute and deliver to her a deed conveying all his interests in real property jointly owned by them. No child is involved in this case.

(a) Prior History: The Petitioner and Respondent were married on September 8, 1951, and were granted a divorce by Supreme Court, Onondga County, on November 24, 1972. The divorce decree provided, Inter alia, that the Respondent deed over to the Petitioner all of his interests in the property jointly owned by them, located in the County of Onondaga. The decree also, in express terms, referred all matters pertaining to enforcement of the decree to the Family Court.

(b) Present Petition: The subject petition was filed on September 24, 1976. From 1973 to 1975, the Respondent was ordered on numerous occasions to deed over his interest in real property to the Petitioner pursuant to the provisions of the divorce decree. Finally, on June 6, 1975, the Respondent was first ordered to show cause why he should not execute and deliver to the Petitioner a deed in and to the premises or, in lieu thereof, why the Onondaga County Sheriff should not be directed to execute and deliver to the Petitioner a deed conveying the Respondent's interest in the property.

The matter then came before this Court on December 16, 1976, on the issue of the right of Family Court to enforce a provision in the divorce decree requiring the transfer of title to real property. Decision was reserved pending the filing of briefs by respective parties. Briefs were ultimately submitted.

LAW

The instant case raises a question of first instance, concerning the scope of jurisdiction and range of powers of the Family Court. More precisely, this case focuses on the jurisdiction of the Family Court to enforce an order directing conveyance of real property between parties to a matrimonial action upon referral from the Supreme Court.

It is well recognized that the Family Court is a Court of limited jurisdiction, whose powers and jurisdiction are limited to those expressly granted to it by the Constitution and laws of New York State. (Loeb v. Loeb, 14 A.D.2d 270, 220 N.Y.S.2d 579; Matter of Burns v. Burns, 53 Misc.2d 484, 278 N.Y.S.2d 669.) Consequently, in a support proceeding, not incident to a matrimonial action, the Family Court is without power to divide property or otherwise direct the conveyance of property as between spouses. (Borkowski v. Borkowski, 38 A.D.2d 752, 330 N.Y.S.2d 106.)

Although the Family Court is not authorized to direct the transfer of title to property in a support proceeding, the Supreme Court is so authorized in a matrimonial action, provided there exist questions regarding title to the property. (Sagnard v. Sagnard, 80 Misc.2d 984, 365 N.Y.S.2d 692, aff'd, 49 A.D.2d 751, 374 N.Y.S.2d 305; Dolphus v. Dolphus, 39 A.D.2d 829, 332 N.Y.S.2d 974; Domestic Relations Law, § 234, subd. (1).) Furthermore, where the Supreme Court directs the owner of real property to execute and deliver a deed to another, and the direction is disobeyed, the owner can be held in contempt. The Supreme Court may then enforce its order by directing the sheriff, pursuant to CPLR 5107, to convey the real property and execute a deed in favor of the appropriate party. (Siegal, Practice Commentaries, McKinney's Cons.Laws of N.Y. Book 14, Domestic Relations Law, § 234, p. 128.)

Despite the constraints placed on the Family Court by virtue of its own limited original jurisdiction, the Family Court in certain matters, has concurrent jurisdiction with the Supreme Court upon referral (N.Y.Const. art. VI, § 13). This concurrent jurisdiction includes the enforcement of Supreme Court orders in matrimonial actions, and arises in only two ways. The first, is by express referral, pursuant to Subdivision (a) of section 466 of the Family Court Act. This requires the Family Court to enforce an order or decree granting support in a matrimonial action, where the Supreme Court expressly refers these matters to the Family Court in the decree itself. The second way that the Family Court obtains concurrent jurisdiction with the Supreme Court is by the latter's silence or inaction. This amounts to a referral by deliberate abstention. Family Court Act § 466, subd. (c). This also leaves to the discretion of the Family Court the choice of whether to entertain an application to enforce such order or decree. (Chesta v. Chesta, 74 Misc.2d 548, 344 N.Y.S.2d 578; Matter of Rand v. Rand, 56 Misc.2d 997, 290 N.Y.S.2d 795).

Once the scope of jurisdiction of the Family Court is established through either deliberate abstention or express referral in the Supreme Court decree, the inquiry next turns to the range of enforcement powers available to the Family Court in the exercise of its jurisdiction.

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, the Family Court is limited in its statutory methods of enforcement to those set forth in the Domestic Relations Law. Resort to the support provisions of Article 4 of the Family Court Act was deemed improper. In support of its holdings, the Court advanced the following rationale, 39 A.D.2d at 995, 333 N.Y.S.2d at 583:

Since the obligation to support under Section 412 of the Family Court Act is founded on the existence of a valid marriage, the procedure whereby the Court sought to enforce the decree of divorce was improper. 1

Therefore, had the instant action involved a Supreme Court decree silent as to its enforcement, and had this Court in its discretion entertained the Petitioner's application to enforce the decree, then this Court would have been empowered with the same methods of enforcement available to the Supreme Court under the Domestic Relations Law. It then follows that this would include the power to direct the sheriff to convey the real property and execute the deed in favor of the Petitioner, pursuant to Section 234 of the Domestic Relations Law and CPLR 5107.

However, when referral is made express under Subdivision (a) of section 466 of the Family Court Act, the statutes and case law are silent in regard to the method of enforcement available to the Family Court, if any, to direct transfer to title to real property between parties to a matrimonial action. This then is the critical question which confronts this Court in the present...

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3 cases
  • Goldstein v. Shapiro
    • United States
    • New York Supreme Court — Appellate Division
    • February 5, 1996
    ...146 Misc.2d 184, 549 N.Y.S.2d 898; Matter of Tighe-Duck v. Duck, 135 Misc.2d 631, 515 N.Y.S.2d 946; Matter of Hendricks v. Hendricks, 89 Misc.2d 1052, 1056, 393 N.Y.S.2d 523). The husband's remaining contention is without merit (see, Matter of Seitz v. Drogheo, 21 N.Y.2d 181, 185, 287 N.Y.S......
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    ...the transfer of possession or title of a marital residence, as part and parcel of the issue of support, Matter of Hendricks v. Hendricks, 89 Misc.2d 1052, 393 N.Y.S.2d 523 (Fam.Ct.Onondaga Co.1977); Matter of Rabasco, v. Rabasco, 93 Misc.2d 556, 403 N.Y.S.2d 169 (Fam.Ct.Dutchess Co.1978); K......
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    • August 12, 1983
    ...of the same powers as the Supreme Court under DRL § 234. In the Matter of a Proceeding for Support Under Article 4 of, 89 Misc.2d 1052, 393 N.Y.S.2d 523. However, the court's power to entertain enforcement of a Supreme Court order under this section is discretionary. Mass v. Mass, 85 A.D.2d......

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