Vincenza v. Vincenza

• Decision Date: 05 June 1950
• Citation: 197 Misc. 1027
• Parties: "Guisseppe Vincenza", Petitioner,<BR>v.<BR>"Frank Vincenza" et al., Respondents.<SUP><A onclick=scife_fn_clicked(); href="#[1]" name=r[1]>[*]</A></SUP>
• Court: New York Family Court

197 Misc. 1027

"Guisseppe Vincenza", Petitioner,

v."Frank Vincenza" et al., Respondents.^[*]

SICHER, J.

June 5, 1950.

John P. McGrath, Corporation Counsel (Mathilda Miller, Aaron Arnold and Max H. Finkelberg of counsel), for petitioner and Department of Welfare of the City of New York.

No appearance for respondents.

SICHER, J.

Question arises whether New York Uniform Support of Dependents Law (L. 1949, ch. 807) contemplates, or at least in its present form effectually provides for, a "poor relative" proceeding against children of a needy parent.

The petition herein alleges in substance that petitioner is seventy years old and the father of the five adult children named as respondents; that he is a "poor relative", being without means, unable to work or otherwise to maintain himself and is in danger of becoming a public charge; that he resides in New York City; that the five respondents reside in Jersey City, New Jersey; that petitioner is entitled to support from those respondents under the provisions of the New York Uniform Support of Dependents Law; that New Jersey has enacted a law substantially similar and reciprocal to the New York Uniform Support of Dependents Law; that the respondents have refused and neglected to provide fair and reasonable support for the petitioner according to their means and earning capacity; and that petitioner therefore "prays for such an Order for Support, directed to said respondents, as shall be deemed to be fair and reasonable".

As used in the New York Uniform Support of Dependents Law, the word "`Petitioner' shall mean and include each dependent person for whom support is sought in a proceeding instituted pursuant to this act" (§ 2, subd. [e]); the word "`Respondent' shall mean and include each person against whom a proceeding is instituted pursuant to this act" (§ 2, subd. [f]); the words "`Initiating state' shall mean the state of domicile or residence of the petitioner" (§ 2, subd. [i]); and the words "`Responding state' shall mean the state wherein the respondent resides or is domiciled or found" (§ 2, subd. [j]).

New York Uniform Support of Dependents Law has not yet been the subject of any discovered published opinion.

Its enactment stemmed from wide-spread concern over the inadequacy of the impact of the criminal law on a deserting husband or father who had run away to another State. In addition to the restricted scope of such criminal law and the technical blocks to enforcement of every penal statute, extradition of an absconding spouse or parent is generally regarded by prosecuting authorities as disproportionately expensive, and his imprisonment after conviction is for the dependents a fruitless remedy.

"At the present time, there is no effective civil remedy to enforce support of abandoned wives or children where a father absconds to another state, leaving behind his dependents. The only legal hold upon such a person at present is a criminal process which is impractical because of expensive extradition costs, the limited nature of the criminal statute, and the fact that arrest of the husband or father destroys the source of wage earnings.

"The extent of the problem is shown by the fact that in one of the nation's more populous counties in 1947, the number of complaints covered 555 families having a total of over fifteen hundred children under 16 years of age. There are over 3,000 counties in the United States, and the problem is most serious in heavily populated centers."

(Quoted from Manual of Procedure, entitled "Reciprocal State Legislation to Compel the Support of Dependent Wives and Children Within and Without the State", issued February, 1950, by The Council of State Governments, 1313 East 60th Street, Chicago 37, Illinois.)

The proposed plan calls for the enactment of substantially similar and reciprocal civil statutes eventually in all the States, territories and possessions of the United States, designed to compel a deserting spouse or parent to support his or her dependents even though they reside in one State and he or she in another.

"Briefly, the following procedure to compel support may be employed among the states and possessions which have enacted this type of legislation:

"1. In the state where the dependent is located, a proceeding is initiated in a local court. The judge certifies that a verified petition has been filed pursuant to the reciprocal act, indicates that the respondent cannot be located in that state, and transmits the necessary papers to the proper court in the state where the respondent may be.

"2. In the state where the respondent is located, the judge of the proper court issues a summons to bring the respondent before him. The proceeding then moves forward in this second court, an order for support is issued, and support payments are collected and forwarded to the court where the proceeding was initiated for the benefit of the dependent." (Quoted from the afore-mentioned Council of State Governments Manual of Procedure.)

Doubtless actual practice will uncover administrative difficulties and gaps in the so-called model New York Uniform Support of Dependents Law for correction by appropriate amendments in the light of experience.

The instant situation examples one such gap.

As already stated, this novel legislation originated from a growing awareness of the great public need to supplement the criminal law touching deserting husbands and parents. The proposers of the ensuing New York Uniform Support of Dependents Law may have envisioned a plan to extend the new remedial legislation ultimately to include also all "poor relative" dependents. But no such widening of objectives is indicated in the above-quoted title of the Manual of Procedure issued by the Council of State Governments nor in the foreword or the interpretive statement therein contained. And the present form of the New York statute seems to me to express such broader purpose only in respect of a "poor relative" child "over the age of seventeen years who is unable to maintain himself and is likely to become a public charge" and not also in respect of a "poor relative" parent.

Thus, although section 1 recites: "The purpose of this uniform act is to secure support in civil proceedings for dependent wives, children and poor relatives from persons legally responsible for their support" (emphasis supplied) and subdivision (d) of section 2 provides: "`Dependent' shall mean and include a wife, child, mother, father, grandparent or grandchild who is in need of and entitled to support from a person who is declared to be legally liable for such support by the laws of the state or states wherein the petitioner and the respondent reside" (emphasis supplied), nevertheless, section 3, entitled "Persons legally liable for support of dependents", contains only provisions relating to support of wives by husbands, children under seventeen years of age (primarily by the father and secondarily by the mother) and for the several liability of both parents "in one state * * * for the support of a child seventeen years of age or older residing or found in the same state or in another state having substantially similar or reciprocal laws, whenever such child is unable to maintain himself and is likely to become a public charge" (§ 3, subd. [c]).

That is, although patterned on section 101 of the Domestic Relations Court Act of the City of New York, section 3 of the New York Uniform Support of Dependents Law wholly omits any express provision (analogous to N. Y. City Dom. Rel. Ct. Act, § 101, subd. 3) for chargeability of a grandparent with the support of a grandchild, and it likewise omits any express provision (analogous to N. Y. City Dom. Rel. Ct. Act, § 101, subd. 4) for the support of a needy parent by his or her adult children. The sole direction for liability for support of "poor relative" dependents is the aforementioned provision of subdivision (c) of section 3, for support of a child over the age of seventeen years who "is unable to maintain himself and is likely to become a public charge."

In the absence of such statutory imposition for a longer period a parent's common-law duty to support his or her offspring continues only during minority. So, the omission to include in section 3 of the New York Uniform Support of Dependents Law among the persons there declared legally chargeable for support of dependents the (adult) children of a "poor relative" parent is highly significant because of another established doctrine that at common law likewise no duty rests upon a child to support his parent. (Ulrich v. Ulrich, 136 N.Y. 120, 123; Edwards v. Davis, 16 Johns. 281, 286; Herendeen v. De Witt, 49 Hun 53-55; Harrigan v. Cahill, 100 Misc. 48-50; Matter of Salm, 171 Misc. 367, affd. 258 App. Div. 875.) "By the law of nature a man was bound to take care of his own father and mother; but there being no temporal obligation to enforce the law of nature, it was found necessary to establish it by Act of Parliament." (Rex v. Munden, 1 Str. [K. B.] 190; 93 Eng. Reprint 465.) "The liability of a child to support its parents who are infirm, destitute, or aged was created in England and here by statute. The statute in that respect created duties unknown to the common law." (Ulrich v. Ulrich, supra, p. 123.)

Accordingly, since the legal obligation of offspring for parental support is statutory only, such liability cannot be extended beyond the terms of the particular statute creating it nor be enforced except to the extent and in the manner therein prescribed. (See Edwards v. Davis, supra; Herendeen v. De Witt, supra; Harrigan v. Cahill, supra; 48 C. J., Paupers, p. 511, and Anonymous v. Anonymous, 176 Misc. 103.)

Moreover, although section 50 of the New York Penal Law makes it a felony for a man to abandon his wife "while she is pregnant and in destitute circumstances or liable to become a burden upon the public" and section 480 of the New York Penal Law likewise makes it a felony for a parent...