Seitz v. Drogheo
| Decision Date | 10 July 1967 |
| Citation | 28 A.D.2d 892,282 N.Y.S.2d 346 |
| Parties | In the Matter of Evelyn SEITZ, Petitioner-Respondent, v. Joseph DROGHEO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Before BELDOCK, P.J., and UGHETTA, RABIN, BENJAMIN and MUNDER, JJ.
MEMORANDUM BY THE COURT.
In a proceeding under subdivision (c) of section 466 of the Family Court to enforce the support provisions of a foreign (Mexican) decree of divorce which terminated the marriage of the parties to this proceeding, the former husband appeals from two orders of the Family Court, Queens County, dated respectively June 16, 1966 and August 29, 1966, the first of which granted the former wife's application to enforce a Mexican divorce decree in which a prior separation agreement between the parties was incorporated and ordered appellant to continue to pay petitioner support pursuant thereto, plus arrears, and the second of which granted the former wife's subsequent application to enforce the provisions of the first order and ordered appellant to post a cash bond or be incarcerated in the workhouse.
Orders reversed, on the law, without costs, and applications dismissed.
In our opinion, the enactment of subdivision (c) of section 466 of the Family Court (L.1965, ch. 355, effective September 1, 1965), purporting to grant authority to the Family Court to enforce decrees granting alimony or support, granted by courts 'not of the state of New York', was wholly unauthorized. The Family Court is now a constitutional tribunal and its powers, as defined by legislation, must be within the ambit of jurisdiction prescribed in the Constitution.
We find nothing in the language contained in any of the provisions cited as justifying legislation endowing the Family Court with jurisdiction over foreign decrees (Const. Art. VI, § 7, subd. (c); Const. Art. VI, § 13, subd. (b), par. 4; Const. Art. VI, § 13, subd. (c)).
In Matter of Potak v. Potak, 26 A.D.2d 950, 274 N.Y.S.2d 994, the constitutionality of subdivison (c) of Section 466 of the Family Court Act was neither raised nor considered, and this Court merely held that, if valid, the section could be interpreted as having a retroactive effect. In Matter of Caron v. Ash, 28 A.D.2d 648, 282 N.Y.S.2d 442, decided by this court on May 22, 1967 the question of constitutionality of the statute was not raised in the Family Court, and was not considered dispositive in this court by reason of the right of the children of the marriage to relief,...
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