Robert T. v. Marcia T.

• Citation: 414 N.Y.S.2d 289,98 Misc.2d 557
• Parties: In the Matter of ROBERT T., Petitioner, v. MARCIA T., Respondent.
• Decision Date: 08 March 1979
• Court: New York Family Court

Page 289

414 N.Y.S.2d 289

98 Misc.2d 557

In the Matter of ROBERT T., Petitioner, v. MARCIA T., Respondent.

Family Court, New York County.

March 8, 1979.

Weinstein & Kaplan, Great Neck, for respondent.

Milton Kail, New York City, for petitioner.

DECISION AND ORDER

RICHARD D. HUTTNER, Judge:

Petitioner and respondent were divorced pursuant to a judgment of divorce dated October 4, 1978, rendered by the Supreme Court, Nassau County. The judgment provided for a merger of a stipulation between the parties dated July 10, 1978. The decree, by its terms, further provides for concurrent jurisdiction between the Supreme Court and the Family Court, "for the purpose of enforcing such provisions of the judgment as are capable of specific enforcement, or to the extent permitted by law making such further decree with respect to alimony, child support, custody, and visitation . . . "

This court assumes that the Supreme Court, Nassau County, by virtue of the foregoing, endeavored to provide the Family Court with the jurisdiction contemplated by § 466 of the Family Court Act (F.C.A.).

The petitioner-husband seeks an order of this court enforcing the divorce judgment by requesting a direction by the court to respondent-wife, to turn over certain items of personalty purportedly the property of the husband.

Unfortunately, neither counsel has furnished this court with a copy of the stipulation alluded to in the judgment of divorce. Presumably, it is in said stipulation wherein provision for the return of the property to the husband is contained.

Counsel for the respondent-wife argues that this court is without jurisdiction in this matter and seeks dismissal of the petition upon the grounds stated in CPLR 3211(a)(2).

The issue then is what are the parameters of Family Court intercession with respect to Supreme Court matrimonial orders referred to the Family Court? Does the Family Court have jurisdiction to enforce each and every provision of such an order?

The authority of the Family Court to enforce or modify an order of the Supreme Court is derived solely from F.C.A. § 466. As a court of limited jurisdiction, the Family Court cannot exercise powers beyond those granted to it by statute. Borkowski v. Borkowski, 38 A.D.2d 752, 330 N.Y.S.2d 106 (2nd Dept., 1972); Loeb v. Loeb, 14 A.D.2d 270, 220 N.Y.S.2d 579 (1st Dept., 1961); Matter of Burns v. Burns, 53 Misc.2d 484, 278 N.Y.S.2d 669 (Fam.Ct.N.Y.Co.1967).

When a support matter is referred from the Supreme Court, the Family Court is empowered to determine the issue in its entirety and make whatever disposition the Supreme Court could make had it retained exclusive jurisdiction. Essentially, the Family Court, in a matter referred from the Supreme Court, stands in the place and stead of the Supreme Court. Accordingly in order to render effective dispositions, the Family Court must be the repository of any and all powers the Supreme Court has in like matters. To hold otherwise would render the Family Court impotent to adjudicate. Capelli v. Capelli, 42 A.D.2d 905, 347 N.Y.S.2d 601 (2nd Dept., 1973). This power for example, includes authority to enforce an order of the Supreme Court directing the transfer of possession or title of a marital residence, as part and parcel of the issue of support, Matter of...