Schwartz v. Schwartz

• Decision Date: 20 May 1965
• Citation: 23 A.D.2d 204,259 N.Y.S.2d 751
• Parties: . Betty SCHWARTZ, mother o/b/o Paula, et al., Infants, Petitioner-Respondent, v. Marvin SCHWARTZ, Respondent-Appellant. Supreme Court, Appellate Division, First Department
• Court: New York Supreme Court — Appellate Division

Page 751

259 N.Y.S.2d 751

23 A.D.2d 204

In the Matter of a Proceeding for Support under Article 4 of the Family Court Act Betty SCHWARTZ, mother o/b/o Paula, et al., Infants Petitioner-Respondent, v. Marvin SCHWARTZ, Respondent-Appellant.

Supreme Court, Appellate Division, First Department.

May 20, 1965.

Maxwell A. Rubin, New York City, for petitioner-respondent.

Marvin Schwartz, New York City, of counsel (Carol H. Katz, on the brief) for appellant.

Before BREITEL, J. P., and RABIN, VALENTE, EAGER and STEUER, JJ.

VALENTE, Justice.

Pursuant to Section 461 of the Family Court Act, petitioner brought a proceeding to modify the provisions of a decree of divorce obtained by her former husband in Mexico in December, 1962, insofar as it directed the payment of $122.50 per week for two children in petitioner's custody. The Mexican decree confirmed a separation agreement entered into by the husband and wife providing for the support of the wife and children.

According to the petition, verified on October 29, 1964, the application was based upon a change of circumstances: the increased needs of the two children--who were 10 and 11 years old--and the father's increased income. The father denied the allegations of the petition relating to the claimed change of circumstances in an answer filed on the return date of the summons.

Upon that return date, petitioner's attorney orally requested a pre-trial examination of the father's books and records. Following a lengthy colloquy among counsel and the Court, the Court ordered an audit of the father's books and records from 1960 to 1964 and also provided that a private accountant chosen and paid for by each party may attend and give evidence and opinions to the Court auditor.

The father then moved to vacate that order for an audit. As a consequence, the original order was modified to the extent of permitting only the father to be present before the Court auditors and by providing that the audit was to be conducted not only on behalf of the Court but also of the petitioner, and in other respects the prior order of December 3, 1964 was to remain unchanged.

By permission of the Appellate Division (Section 1012, Family Court Act) the father has appealed from both orders.

The orders should be reversed and the proceedings remanded to the Family Court.

There is must in the briefs of the parties as to the applicability of the disclosure provisions of the CPLR to Family Court proceedings. Section 165 of the Family Court Act provides that where the methods of procedure in any proceeding in which the Family Court has jurisdiction are not prescribed, the provisions of the CPLR shall apply 'to the extent that they are appropriate to the proceeding involved'. So, too, CPLR 101 provides that the CPLR 'shall govern the procedures in civil judicial proceedings in all the courts of the state and before all judges, except where the procedure is regulated by inconsistent statute'.

Thus, in the absence of special rule or statute, the procedure in the new Family Court was intended to be more formal than theretofore pursued in the predecessor Domestic Relations and Children's Courts and was to be regulated to the extent that it was 'appropriate' by the provisions of the CPLR. In view of the different kinds of controversies within the jurisdiction of the Family Court, it is apparent that the CPLR provisions will not always be 'appropriate'. However, the underlying purpose in making the CPLR applicable was to require more formal and predictable procedure in the Family Court as an adjunct to its increased power and jurisdiction.

Thus, in Matter of Harris v. Doley, 22 A.D.2d 769, 253 N.Y.S.2d 645, this Court held that a decision by the Family Court following a trial in a paternity proceeding must conform to the requirements of CPLR 4213, subd. (b), and must state the facts deemed essential to support the determination. (See, also, Sager v. Sager, 21 A.D.2d 183, 249 N.Y.S.2d 467; Matter of 'Doe' v. 'Roe', 40 Misc.2d 148, 242, N.Y.S.2d 742.)

Since the determination of when it is 'appropriate' to apply the provisions of the CPLR to the numerous and unusual situations which will arise in the Family Court will depend upon the circumstances of the cases as they arise, this Court may not adequately spell out definite guide lines for future determinations. However, it can be said that procedures should, as consistently as possible, conform to the spirit of the CPLR without necessarily importing into Family Court proceedings punctiliousness or the complexities and technical requirements of the CPLR. Procedure is to be used as a working tool and not as an impediment to the functioning of the Family Court.

Section 433 of the Family Court Act provides that upon the return of a summons in a Support Proceeding under Article 4 of the Act that 'the court shall proceed to hear and determine the case'. The procedure upon a hearing is governed by Section 435 which provides in subdivision (a) that hearings are to be conducted by the court without a jury and that the court 'may adjourn the hearing to enable it to make inquiry into the surroundings, conditions and capacities of the child, into the financial abilities and responsibilities of both parents and for other proper cause'. Apart from the provision for an inquiry by the court, the Family Court Act contains no other rules regarding disclosure.

However, the Family Court has recognized that the disclosure devices of the CPLR would be 'appropriate' in some cases. (See Matter of 'Doe' v. 'Roe', 40 Misc.2d 148, 242 N.Y.S.2d 742.) Section 435(a) of the Family Court Act envisages situations in which disclosure of the financial ability of the parent may be necessary in order to render a proper disposition of a case. But the necessity for such disclosure must appear from the evidence at the hearing which under Section 435(a) may be adjourned to permit the further inquiry. Even under the liberal disclosure provisions of the CPLR, this Court has held that in a separation action no examination before trial of a defendant as to his income, property and assets will be ordered in the absence of a showing of special circumstances. (La Mura v. La Mura, 22 A.D.2d 658, 253 N.Y.S.2d 304.) In a matrimonial case 'the need for the examination should be shown'. (Nomako v. Ashton, 20 A.D.2d 331, 334, 247 N.Y.S.2d 230, 233.) A proper case for disclosure must be established by evidentiary proof. (Hunter v. Hunter, 10 A.D.2d 291, 296, 198 N.Y.S.2d 1008, 1014, lv. to app. den. 10 A.D.2d 937, 201 N.Y.S.2d 961.)

Section 435(a) of the Family Court Act envisages that the special circumstances warranting a court audit be adduced at the hearing mandated by Section 433. In the instant proceeding, predicated on Section 461(b)(ii), it was incumbent on petitioner to make a prima facie demonstration at the hearing of the changed circumstances of the children before the father's finances became material. The record shows that there was no such proof before the Court at the time a disclosure was directed. The requirement of a hearing is not met by extensive colloquy between the Court and counsel. There must be proof as well as argument. (See People v. Richetti, 302 N.Y. 290, 297, 97 N.E.2d 908, 911.) A hearing need not follow any particular form, but any meaningful hearing must, at least, consist of an adducement of proof coupled with an opportunity to rebut it. The precise extent of a 'hearing' required by a statute will vary with the purpose and context of the statute. (See De Bierre v. Darvas, 22 A.D.2d 550, 257 N.Y.S.2d 179, in which this Court discussed the provisions of CPLR 6111 mandating a hearing in connection with an order of arrest; cf. Aberlin v. Aberlin, 3 A.D.2d 417, 161 N.Y.S.2d 305.)

Thus, in the absence of competent proof of the alleged change in circumstances, it was an improvident exercise of discretion for the Court to have ordered a general audit of the father's books and records. Only after a court has been...