Rivera v. Rivera

• Citation: 5 Misc.2d 362,160 N.Y.S.2d 171
• Parties: In the Matter of Mary RIVERA, Petitioner, v. John RIVERA, Respondent. Children's Court, Westchester County
• Decision Date: 01 March 1957
• Court: New York Children's Court

Page 171

160 N.Y.S.2d 171

5 Misc.2d 362

In the Matter of Mary RIVERA, Petitioner, v. John RIVERA, Respondent.

Children's Court, Westchester County.

March 1, 1957.

U. D'Alessandro, Senior Asst. County Atty., Rye, Harry G. Herman, County Attorney, Westchester County, White Plains, of counsel, for petitioner.

John P. Griffith, New York City, for respondent.

BECKER, Judge.

This is a proceeding under the Uniform Support of Dependents Law instituted by the petition of respondent's wife in the Third District Court of Bristol County, Massachusetts, alleging that she is the wife of the respondent and entitled to support under the provisions of the Uniform Reciprocal Enforcement of Support Law of that Commonwealth, St.1954, c. 556. The petition also refers to the Bristol County Probate decree entered prior to the filing of the petition which directs the respondent to pay $25 per week for her support. Upon receipt of the papers in this court, a summons was issued to the respondent, who appeared by counsel and filed an answer controverting the petition. This answer was transmitted to the initiating court, who advised that the petitioner was desirous of attending personally any hearings held in this court. Accordingly, a hearing was scheduled in this court, at which time the respondent appeared with his counsel, and the petitioner appeared in person and was represented by the County Attorney. At the outset of this hearing, the attorney for the respondent made a motion to dismiss on the ground that the Children's Court was without jurisdiction inasmuch as there were no children of the marriage, and the petition was seeking support for a wife only. Decision was reserved on this motion. A further motion was made by the attorney for the respondent to dismiss on the ground that there was no allegation in the petition that the petitioner is 'in need of' support, as provided in Sec. 6(a) of the Uniform Support of Dependents Law, Sec. 2116(a), Unconsolidated Laws. Decision was reserved on this motion pending disposition of the first motion.

Inasmuch as the first motion made by the respondent's attorney attacks the jurisdiction of the Children's Court to entertain the proceeding, this court feels that a decision relative to that issue is a prerequisite to further consideration of this matter. The objection raised by the respondent's counsel poses the question of whether this court has jurisdiction to entertain a petition for a dependent wife where there are no children involved, inasmuch as the language of Art. 3-A of the Children's Court Act of the State of New York definitely prescribes jurisdiction to compel support of a wife if pregnant, or if the support of her minor child or stepchild is involved. Children's Court Act, § 30, subd. 1.

The proceeding herein was not instituted pursuant to the Children's Court Act, but under the Uniform Support of Dependents Law, § 2111 et seq. of the Unconsolidated Laws. This statute is a self-contained, separate statute, the constitutionality of which, as it relates to reciprocal enforcement of support for a minor child, has been upheld by the Court of Appeals of the State of New York in Landes v. Landes, 1 N.Y.2d 358, 153 N.Y.S.2d 14.

The Constitution of the State of New York has delegated to the Legislature of this State, in Art. 6, Sec. 18, power to confer jurisdiction on courts 'to compel the support of a wife' in the following language:

'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 for the correction, protection, guardianship and disposition of delinquent neglected or dependent minors, and for the punishment and correction of adults responsible for or contributing to such delinquency, neglect or dependency 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.' (Italics ours.)

The reasonable interpretation to be placed on the use of the comma after te word 'wife' in the above quoted section would be an indication of legislative intent to make the matter of support for a wife mutually exclusive of support of a wife and child.

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