Schaeffer v. Schaeffer
| Decision Date | 05 October 1979 |
| Citation | 420 N.Y.S.2d 700,101 Misc.2d 118 |
| Parties | Elaine SCHAEFFER, Petitioner, v. James SCHAEFFER, Respondent. |
| Court | New York Family Court |
Before this court is a continuing Uniform Support of Dependents Law matter as well as a custody petition referred to us for hearing and determination by the Supreme Court of Suffolk County.
Elaine Schaeffer, petitioner in the Uniform Support Dependents Law petition and plaintiff, although not the movant, in the Supreme Court custody referral, herein after referred to as petitioner, is the former spouse of James Schaeffer, the respondent in the aforesaid Uniform Support of Dependents Law proceeding and defendant in the custody referral, herein after referred to as respondent. The parties were granted a judgment of divorce by the Supreme Court Suffolk County on November 17, 1975. Pursuant to that judgment of divorce, custody of the child of the marriage, Jamie Schaeffer, born May 7, 1964, was awarded to petitioner. Thereafter, petitioner removed herself to the State of Florida where she has since continuously resided with Jamie. Subsequent thereto, numerous hearings have been held by this court concerning support for Jamie and visitation with the boy by respondent. With respect to the issue of support, the respondent's past conduct has been found by this court on one occasion to be contumacious to the point where a jail commitment was invoked in order to enforce the order of the court. We note that that commitment was suspended on December 6, 1978 on condition that there be strict future compliance with the order of this court.
On May 4, 1979, respondent sought to suspend all further support payments for Jamie as directed in the amended order of support dated December 6, 1978. He further sought suspension of the payroll deduction order of the same date and also requested that all monies being held in escrow by the Suffolk County Support Collections Unit (withheld to insure adequate visitation to respondent) be released immediately. After the hearing, respondent's application was denied in all respects and the prior orders of this court continued, including the condition that the support monies be held in escrow to insure that petitioner permitted Jamie to visit with his father during the summer of 1979.
In the latter part of June, 1979, Jamie was sent to New York by petitioner to visit with his father for a five week period as provided by order of this court. Since that time, respondent has refused to return the child to petitioner.
By Order to Show Cause dated July 9, 1979, petitioner sought a release of all escrow funds deposited with the Suffolk County Support Collection Unit and a continuance of the support order. Respondent cross moved for the same relief sought at the previously alluded to May 4, 1979 hearing. Thereafter, respondent instituted a proceeding for custody of Jamie in the Supreme Court, Suffolk County, which matter was subsequently referred to the Family Court for hearing and determination by order dated August 29, 1979.
Petitioner has objected to the assumption of jurisdiction of the custody issue by this court, alleging that the provisions of the Uniform Child Custody Act Law, Article 5-A, prohibit the court from making a determination thereto. Since the defense of subject matter jurisdiction cannot be waived, and may be raised, even by the court on its own motion, at any stage of the action, (CPLR § 3211(e), Eckert v. Eckert, 34 A.D.2d 684, 312 N.Y.S.2d 183; Robinson v. Oceanic Steam Nav. Co., 112 N.Y. 315, 19 N.E. 625; Wildeb Rest, Inc. v. Jolin Restaurant, Inc., 69 Misc.2d 1012, 331 N.Y.S.2d 575) the court will first rule on this issue.
It is undisputed that Jamie has continuously resided with his mother in Florida since 1976. "Home state" as used in Article 5-A (Uniform Child Custody Jurisdiction Act) of the Domestic Relations Law "means the state in which the child at the time of the commencement of the custody proceeding has resided with his parents, a parent, or a person acting as parent, for at least six consecutive months." See § 75-c(5). Ordinarily, the "home state" has exclusive custody jurisdiction, but there are exceptions under the Uniform Child Custody Jurisdiction Act, these are spelled out in Domestic Relations Act § 75-d subdivisions 1(b) and 1(c). These subdivisions read as follows: ...
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