Slochowsky v. Lavine

• Decision Date: 26 March 1973
• Citation: 342 N.Y.S.2d 525,73 Misc.2d 563
• Parties: Application of Loretta Kraemer SLOCHOWSKY, Petitioner, for a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, annulling a determination made by: Abe LAVINE, as Commissioner of the New York State Department of Social Services, and James M. Shuart, as Commissioner of the Nassau County Department of Social Services, Respondents.
• Court: New York Supreme Court

Page 525

342 N.Y.S.2d 525

73 Misc.2d 563

Application of Loretta Kraemer SLOCHOWSKY, Petitioner, for a

Judgment Pursuant to Article 78 of the Civil

Practice Law and Rules, annulling a determination

made by: Abe LAVINE, as Commissioner of the New York State

Department of Social Services, and James M.

Shuart, as Commissioner of the Nassau

County Department of Social

Services, Respondents.

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

March 26, 1973.

[73 Misc.2d 564] Leonard S. Clark and Carl Jay Nathanson, Hempstead, for petitioner.

Louis J. Lefkowitz, Atty. Gen., Albany, for respondent Abe Lavine.

MEMORANDUM

BERTRAM HARNETT, Justice.

Support of stepchildren is often a family problem. But, sometimes it is a public concern.

Under the Federal public assistance program called Aid to Families with Dependent Children (AFDC), family income is considered in determining a child's eligibility for relief. All of a natural father's income is typically deemed available to his child, but the situation is more complicated where stepfathers are found. The Federal Regulations allow consideration of all of the stepfather's income in estimating the child's eligibility only if the applicable State law establishes a general obligation on all stepfathers to support their stepchildren, but not where the stepfather is liable to support only a stepchild likely to be a public charge.

In this decision we find, after reconciling a confusing statutory scheme, that in New York there is no general obligation of stepfathers to support their stepchildren, and that these support obligations only occur where the child is otherwise to become a public charge, or under special circumstances of agreement or estoppel. Accordingly, the stepfather's entire income is not automatically figured to the stepchild, but as explained below, on familiar social services principles, only so much of it as is actually devoted to the child. A. Family Composition and Agency Termination

In July 1971, Loretta and George Slochowsky were married, each for the second time. Mrs. Slochowsky had two children by her first marriage which was ended by divorce, and because her ex-husband, Mr. Kraemer, failed to support the family, she and the children received AFDC public assistance from the Nassau County Department of Social Services. Mr. Slochowsky has three children by his former marriage, who live with their natural mother, and pays $238 per month to support them, by court order, plus paying medical, dental and life insurance expenses. He has not adopted the two Kraemer stepchildren. Earning a net salary of $190 per week, Mr. Slochowsky and his wife, after his support payments are deducted, are self-sufficient and have not applied for public assistance in their own behalf.

After a protracted delay in the local agency's termination of assistance to the two stepchildren, ¹ in July 1972, their AFDC assistance was discontinued. The agency budgeted Mr. Slochowsky's entire income towards the needs of the stepchildren, as well as those attributed to himself and Mrs. Slochowsky, recognized a $165 per month shelter need instead of the $294 mortgage expense actually incurred, and found a budgetary surplus of $68.10.

By fair hearing decision dated September 29, 1972, the State affirmed that determination. In so doing, it specifically relied upon the obligation of stepparents in New York to support stepchildren 'who are recipients of or in need of public assistance', and 18 NYCRR § 352.31, which provides that all available income of a spouse, if in the home, shall be applied against the needs of the family. This Article 78 proceeding followed, basically asserting that the State determination, and regulation as applied, is contrary to Federal requirements. ²

B. When Assumed Stepparent Income is Permitted

AFDC in New York is a co-operative venture. Its origin is the Federal Social Security Act, 42 U.S.C. § 601 et seq. under which millions of dollars in Federal aid are dispensed to New York which in return is required to conform its State plan to Federal requirements.

1. Mandatory AFDC Requisite: 'Generally Applicable' Support Obligation

In general, Federal requirements define the class of 'dependent children' entitled to receive AFDC. That definition is binding upon the States participating in the AFDC program. King v. Smith 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968); Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971); Lewis v. Martin, 397 U.S. 552, 90 S.Ct. 1282, 25 L.Ed.2d 561 (1970). The New York State Legislature has specifically stated its intention to conform its State Plan to Federal Requirements. Laws 1970, Ch. 517 § 1; see, Young v. Shuart, 67 Misc.2d 689, 695, 325 N.Y.S.2d 113, 119, mod. 39 A.D.2d 724, 331 N.Y.S.2d 962.

Congress has defined a dependent child entitled to AFDC, in pertinent part, as a:

'needy child . . . who has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent . . .'. 42 U.S.C. § 606(a).

45 CFR § 233.90(a) provides in pertinent part:

'A State plan . . . must provide that the determination whether a child has been deprived of parental support or care . . . will be made only in relation to . . . the child's Stepparent who is ceremonially married to the child's natural or adoptive parent and Is legally obligated to support the child under State law of general applicability which requires stepparents to support stepchildren to the same extent that natural or adoptive parents are required to support their children . . . (T)he income only of the parent described (above) will be considered available for children in the household in absence of proof of actual contributions'. ³ (Emphasis supplied).

In Lewis v. Martin, Supra, the United States Supreme Court upheld the predecessor to this regulation which prohibited assuming income being available from a 'substitute parent', holding that only stepparents bound to support by State law are included in the term 'parent'.

2. Support Obligation Apart From AFDC Decisive

In Sterrett v. Gaither, 409 U.S. 1070, 93 S.Ct. 688, 34 L.Ed.2d 660 (1972), affirming 346 F.Supp. 1095 (N.D.Ind.1972), the Supreme Court affirmed a unanimous three judge court ruling which restrained enforcement of Indiana's public assistance statute that counted nonadoptive stepfather income towards AFDC as being not a law of 'general applicability' and hence in conflict with Federal regulations. Indiana's law required stepparents' income to be considered available to support a stepchild where the child would otherwise be eligible for AFDC. See also, Bunting v. Juras, 502 P.2d 607 (Oregon Ct. of Appeals 1972).

The United States Department of Health, Education and Welfare (HEW), the Federal agency delegated the responsibility of enforcing the Social Security Act, see, Rosado v. Wyman, 397 U.S. 397, 406--407, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), has precisely interpreted the meaning of a law of 'general applicability':

'A duty of general applicability (is one) which (a stepparent) could be compelled by court order to fulfill . . . regardless of whether the children would otherwise receive AFDC payments'. HEW Amicus Curiae Brief at p. 23, submitted in Lewis v. Martin, Supra.

C. New York's Stepparent Support Law

The stepparent support law in New York is statutory in origin. There was no such common law obligation. Matter of Kane v. Necci, 245 App.Div. 1, 280 N.Y.S. 489, appeal dismissed, 269 N.Y. 13, 198 N.E. 613.

1. Statutes Expressly Applicable to 'Public Charge' Stepchildren

Under New York statutory law, the support liability of a stepparent is imposed only where the stepchild is receiving or in danger of receiving public assistance. The obligation is set forth principally in Family Court Act § 415, entitled 'Duties to support recipient of public assistance or welfare and patients in institutions in the department of mental hygiene', as follows:

'The . . . parent of a recipient of public assistance or care or of a person liable to become in need thereof . . . if of sufficient ability, is responsible for the support of such person . . . Step-parents shall in like manner be responsible for the support of minor children'.

This provision is reiterated in substantially identical form in Social Services Law § 101(1). Sections 413 and 414 of the Family Court Act impose a general duty of minor child support upon the natural mother and father, without regard to the child's resources, but make no mention of a comparable stepparent support responsibility. The Domestic Relations Law and matrimonial actions arising under it generally rely upon and incorporate the support obligations contained in the Family Court Act and Social Services Law.

2. Article 3--A Domestic Relations Law

The State, in arguing that a 'general' support obligation exists, cites, however, Article 3--A of the Domestic Relations Law. It is true that a 'child' eligible for support for the purpose of Article 3--A is defined to include 'a stepchild'. Domestic Relations Law §§ 31(3), 32(2).

However, Article 3--A does not create a general obligation. Entitled 'Uniform Support of Dependents Law' (USDL), it is a vehicle for the conduct of essentially an enforcement support proceeding where the petitioner seeking support lives outside the county or state where the respondent obligor resides. Proceedings under Article 3--A are maintainable only between residents of different counties, or reciprocating states with similar USDL statutes. Domestic Relations Law § 35. ^3-A They avoid the inconvenience of the party seeking support having to go to the place where the obligor resides, and allow for a bifurcated hearing, first in one jurisdiction, as to the petitioner's affirmative proof, then in another jurisdiction as to respondent's reply. Where a dispute arising under Article 3--A requires application of the substantive support law of New York (either between only...