Theresa S. v. Karel S.

• Decision Date: 12 August 1983
• Citation: 120 Misc.2d 395,466 N.Y.S.2d 216
• Parties: In the Matter of THERESA S., Petitioner, v. KAREL S., Respondent.
• Court: New York Family Court

Page 216

466 N.Y.S.2d 216

120 Misc.2d 395

In the Matter of THERESA S., Petitioner, v. KAREL S., Respondent.

Family Court, City of New York New York County.

Aug. 12, 1983.

Frederick A.O. Schwarz, Jr., Corp. Counsel by Larry Schwartzstein, New York City, for petitioner.

Alcine M. Panton, New York City, for respondent.

DECISION and ORDER

ELRICH A. EASTMAN, Judge:

Petitioner, Theresa S., seeks to enforce a judgment of divorce entered in the Supreme Court, New York County, on January 6, 1983 incorporating by reference an oral stipulation, dated November 29, 1982 providing for payment of $3,500 to the petitioner. Payment of the said sum was to be made in two instalments of $1,000 plus $50 per month for 30 months. Respondent made the first payment of $1,000, then defaulted.

Respondent now moves to dismiss this proceeding on the grounds that this court lacks subject matter jurisdiction, since this lump sum payment was in the nature of a distributive award under the equitable distribution provisions of DRL § 236, Part B(6). Petitioner, contends that it was in fact maintenance and as such enforceable under F.C.A. § 466(c).

It appears that this is a case of first impression, wherein this court is called upon to interpret the provisions of DRL § 236, Part B.

Under F.C.A. § 466(c) the court may "(i) entertain an application to enforce the order or decree granting alimony or maintenance ...." entered by the Supreme Court where the decree of divorce is silent as to the forum of enforcement. Here, this decree of divorce is silent, thus affording this court discretion to assume jurisdiction. In exercising that jurisdiction, Family Court is possessed of the same powers as the Supreme Court under DRL § 234. In the Matter of a Proceeding for Support Under Article 4 of, 89 Misc.2d 1052, 393 N.Y.S.2d 523.

However, the court's power to entertain enforcement of a Supreme Court order under this section is discretionary. Mass v. Mass, 85 A.D.2d 802, 445 N.Y.S.2d 612.

In the instant case, this court is called upon to determine the nature of the lump sum award made to the petitioner herein. Under the equitable distribution provisions, DRL § 236 Part B(1)(b), a distributive award is defined "as a payment or payments made in lieu of or to 'supplement', facilitate or effectuate a property distribution. A distributive award may be payable in one lump sum or over a period of time in fixed amounts." Under this section the term maintenance is defined as "payments provided for in a valid agreement between the parties or awarded by the court to be paid at fixed intervals for a definite or indefinite period of time, to meet the reasonable needs of a party to the matrimonial action ...".

The parties herein divided the personal property between them and agreed upon a lump sum payment of money to be paid to the petitioner. Unclear in the judgment is the designation of this sum, since such a payment could be used as a supplement to the property distribution and hence fall within the category of a distributive award. Conteh v. Conteh, 117 Misc.2d 42, 457 N.Y.S.2d 363. On the other hand, since the stipulation read into the record indicated that settlement was of all claims "to maintenance, support and equitable distribution," maintenance was likewise an ingredient of the stipulation.

Under Domestic Relations Law, Section 236, matrimonial actions commenced prior to July 19, 1980, the effective date of the equitable distribution provisions of this section, shall be governed by Part A of the section relating to alimony, and such...