Vazquez v. Vazquez

• Citation: 273 N.Y.S.2d 12,26 A.D.2d 701
• Parties: Candido Leo VAZQUEZ, Appellant, v. Joanne VAZQUEZ, Respondent.
• Decision Date: 12 July 1966
• Court: New York Supreme Court — Appellate Division

Page 12

273 N.Y.S.2d 12

26 A.D.2d 701

Candido Leo VAZQUEZ, Appellant, v. Joanne VAZQUEZ, Respondent.

Supreme Court, Appellate Division, Second Department.

July 12, 1966.

Before CHRIST, Acting P.J., and HOPKINS, BENJAMIN, BRENNAN and HILL, JJ.

MEMORANDUM BY THE COURT.

In an action by a former husband to declare invalid a Nevada decree of divorce obtained by his former wife, the husband appeals from so much of an order of the Supreme Court, Suffolk County, entered February 16, 1966, upon rehearing of the wife's motion for counsel fees, expenses, and temporary support for the infant children of the marriage, as adheres to the court's prior decision directing the husband to pay $50 a week for the children's support.

Order, insofar as appealed from, affirmed, without costs.

The husband challenges the order solely on the ground that, in an action by him to declare the invalidity of a foreign divorce obtained by his wife, the Supreme Court is without jurisdiction to grant an order directing him to support his children. He contends that section 240 of the Domestic Relations Law, dealing with the custody and maintenance of children, omits any mention of this type of action, and that, therefore, the power of the Supreme Court to direct the support of the children is negated, citing Langerman v. Langerman, 303 N.Y. 465, 104 N.E.2d 857, and Gontaryk v. Gontaryk, 20 A.D.2d 633, 246 N.Y.S.2d 270.

There are factual differences between Langerman and this case, but unquestionably Langerman holds that the Supreme Court may grant support to children only when statutory power is specifically present (Langerman v. Langerman, supra, 303 N.Y. 465, 471, 104 N.E.2d 857, 859). That case, however, was decided before the amendment to the State Constitution, reorganizing the court structure, and depended on the language of the then-existing Constitution for its determination. Gontaryk, moreover, was decided on the basis of the provisions of the Civil Practice Act, and did not take account of the changes in the law wrought by both court reorganization and the CPLR.

The present Constitution endows the Supreme Court with general Original jurisdiction in law and equity, and it provides that '(i)f the legislature shall create new classes of actions and proceedings, the supreme court shall have jurisdiction over such classes of actions and proceedings,' even though the legislature provides that other courts may have jurisdiction over the same actions and proceedings (Constitution, art. VI, § 7, subds. (a) and (c)). In contrast, the constitutional provision prior to approval by the people of the amendment, stated simply that 'The supreme court is continued with general jurisdiction in law and equity * * *' (Constitution, former art. VI, § 1), without any reference to Original jurisdiction. Thus the amendment gave broader and more comprehensive powers to the Supreme Court and did not confine its jurisdiction to those areas in which traditionally it had exercised its powers.

In adopting the amendments to the Domestic Relations Law following court reorganization and simultaneously with the enactment of the CPLR, the legislature framed the statutory power of the Supreme Court so as to grant counsel fees in an action to declare a foreign divorce a nullity, but, in authorizing the Supreme Court to grant support for children, omitted any reference to such an action (cf. Domestic Relations Law, §§ 237, 240). The omission would seem an inadvertence, for otherwise the nature of the actions described in the two sections of the law is precisely the same, with the added power conferred on the Supreme Court to grant support to children in Habeas corpus or custody proceedings (Domestic Relations Law, § 240).

In any event, we think that the Constitution and statutes now authorize the Supreme Court to issue directions for the support of children in any appropriate action, whenever that question arises. In addition to the constitutional provisions to which we have referred, supra (Constitution, art. VI, § 7, subds. (a) and (c)), the Constitution provides that the power of the Family Court to grant support for dependents does not impair or limit the jurisdiction of the Supreme Court (Constitution, art. VI, § 13, subds. (b) and (d)). Though the legislature, in implementing the constitutional power of the Supreme Court, first apparently confines that court's jurisdiction to that possessed by...