Tessler v. Siegel
| Decision Date | 03 November 1977 |
| Citation | 59 A.D.2d 846,399 N.Y.S.2d 218 |
| Parties | Florence TESSLER, Petitioner-Respondent, v. Jerry SIEGEL, Respondent-Appellant, Attorney General of the State of New York, Intervenor. |
| Court | New York Supreme Court — Appellate Division |
A. G. Apfel, Far Rockaway, for respondent-appellant.
E. Shapiro, New York City, for intervenor.
Before KUPFERMAN, J. P., and SILVERMAN, EVANS and CAPOZZOLI, JJ.
Order, Family Court, New York County, entered June 17, 1977, granting to petitioner-mother an award of fifty-five dollars ($55.00) per week for the care of the parties' infant daughter, unanimously reversed, on the law, without costs and without disbursements and remanded for further proceedings at which petitioner's financial status will be examined.
This is a child support proceeding brought pursuant to Article 4 of the Family Court Act. The Court entered an order granting the mother-petitioner an award of fifty-five dollars ($55.00) a week for the care of the parties' infant daughter. The award was predicated upon the Court's finding that payment for support would rest solely on the father-appellant. The motion to have respondent examined as to her financial condition was denied on the grounds that the mother's means are irrelevant.
Appellant now attacks the Court's ruling on the grounds that §§ 413 and 414 of the Family Court Act as well as § 32 of the Domestic Relations Law are constitutionally offensive in that said statutes impermissibly classify persons on the basis of gender in violation of the Equal Protection Clause of the Fourteenth Amendment.
The record clearly shows that the Family Court ignored § 32 of the Domestic Relations Law and predicated its order solely upon § 413 of the Family Court Act.
In a very recent decision, Carter v. Carter, 58 A.D.2d 438, 397 N.Y.S.2d 88, the Second Department was presented with the exact question of law the appellant presents here. In an extensive and well-reasoned opinion, the Court refused to declare §§ 413 and 414 of the Family Court Act unconstitutional on equal protection grounds and instead, read the sections together.
"Our construction of sections 413 and 414 of the Family Court Act as permitting that court to apportion the costs of support of a child between its parents according to their respective means and responsibilities, even when it appears that the father is fully capable of supporting the child out of his own means, reconciles them with section 240 of the...
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...v. Carter, 58 A.D.2d 438, 446, 397 N.Y.S.2d 88, 93, Supra (Family Ct. Act, §§ 413 and 414 read in tandem); see, also, Tessler v. Siegel, 59 A.D.2d 846, 399 N.Y.S.2d 218 (same)). In the instant case, section 238 of the Domestic Relations Law presently allows the trial court to require either......
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