Rottenberg v. Rottenberg

• Decision Date: 02 August 1960
• Parties: Hanna ROTTENBERG, Respondent, v. Selig ROTTENBERG, Appellant.
• Court: New York Supreme Court

Page 210

207 N.Y.S.2d 210

24 Misc.2d 489

Hanna ROTTENBERG, Respondent, v. Selig ROTTENBERG, Appellant.

Supreme Court, Special Term, Nassau County, Part I.

Aug. 2, 1960.

Begun Brothers, New York City, for appellant.

Jerome Lewis, Brooklyn, for respondent.

WILLIAM R. BRENNAN, Jr., Justice.

The appellant (respondent below) appeals from an order of the District Court of Nassau County, First District, made May 24, 1960 after a nonjury trial, adjudging him chargeable with support of the respondent (petitioner below), and directing him to pay to the Nassau County Probation Department the sum of $45 per week for the support and maintenance of the wife commencing May 25, 1960.

The proceeding was instituted by the filing of an information on April 19, 1960 alleging a violation of Section 899, subdivision 1, of the Code of Criminal Procedure in that the husband neglected to provide adequately for the wife between January 25, 1960 and April 19, 1960. A warrant was issued on that date and the husband was arrested thereunder on May 10, 1960 when he was released on his own recognizance for trial at a later date; and the trial was had on May 24, 1960.

In the meantime, on April 21, 1960, Chapter 770 of the Laws of 1960, adding Article II-A to the Nassau County District Court Act relating to support proceedings, became effective. It has already been held that the new article confers on the District Court a civil jurisdiction in support proceedings which incorporates an appeal procedure pursuant to which appeals from District Court orders may be taken to this Court (Rottenberg v. Rottenberg, 207 N.Y.S.2d 207, Gulotta, J.). This appeal is, therefore, properly before this Court for determination on the merits.

It is the husband's position that in the absence of proof that the wife is likely to become a public charge, the husband may successfully defend if he can show that the wife was guilty of abandonment or wrongful refusal to live with the husband. Proffers of proof along these lines were rejected by the Trial Court which relied upon the power granted by section 255-a, subd. 1, of the new District Court Act Article II-A, as authorizing an order for support regardless of any question of the wife becoming a public charge and regardless of actual or constructive abandonment, if any. It may be noted that the likelihood of the wife becoming a public charge was not an issue before nor determined by the Trial Court, since it was there conceded that 'for this week' (i. e., at the time of trial) the wife was not likely to become a public charge.

There is no question of the District Court's jurisdiction in the premises. The proceedings under the information lodged under section 899 of the Code of Criminal Procedure were properly transferred to the Civil Calendar of the District Court and continued as though they had been commenced by petition filed pursuant to new Article II-A of the District Court Act (Nassau County Dist. Ct. Act, § 255-w). The Act (§ 255) confers jurisdiction on that court to 'hear and determine proceedings to compel the support of a wife * * * by a husband.' And it provides that: 'In the exercise of its jurisdiction the court shall have power: 1. To order support of a wife or minor child irrespective of whether either is likely to become a public charge, as justice requires having due regard to the circumstances of the respective parties.' D.C.A. § 255-a.

The statutory grant of power to the District Court to order support for the wife is limited to an order that 'justice requires having due regard to the circumstances of the respective parties.' The word 'circumstances' in this context is not qualified by the adjective 'financial' and therefore requires consideration of more than the relative monetary and earning factors urged by the respective parties. Thus in Guzewicz v. Guzewicz, 5 A.D.2d 1004, 173 N.Y.S.2d 683, the Appellate Division in this Department in reversing an order for support made under a similar statute (N. Y. City Domestic Relations Court Act, § 92) considered not only the relative financial status of the husband and wife, but also the motivations which the wife alleged for her unwillingness to return to the marital home. The Domestic...