Walsh v. Walsh

• Citation: 518 N.Y.S.2d 1008,136 Misc.2d 564
• Parties: . WALSH, Petitioner, v. Martin J. WALSH and Robert J. Stone, Commissioner of Social Services, Respondent. Family Court, Onondaga County
• Decision Date: 04 August 1987
• Court: New York Family Court

Page 1008

518 N.Y.S.2d 1008

136 Misc.2d 564

In the Matter of a Proceeding for Support under Article 4 of

the Family Court Act, Rose M. WALSH, Petitioner, v. Martin J. WALSH and Robert J. Stone, Commissioner of Social

Services, Respondent.

Family Court, Onondaga County.

Aug. 4, 1987.

Benjamin D. Levine, Syracuse, for petitioner.

Anthony F. Copani, Deputy Co. Atty., for respondent D.S.S.

William Balduf, Syracuse, for respondent Walsh.

EDWARD J. McLAUGHLIN, Judge.

I. PROCEDURAL HISTORY OF THE CASE

An objection to an order of the Hearing Examiner was filed with the court on July 10, 1987 pursuant to section 439 of the Family Court Act. Respondent, the Commissioner of Social Services through the County Attorney, objects to an order of the Hearing Examiner, which order was filed and entered on June 12, 1987. Petitioner submitted a letter as rebuttal. The letter was received on July 17, 1987, within the eight day period presently set forth in subparagraph e of section 439 of the Family Court Act. Respondent submitted no papers.

The Hearing Examiner found, after holding a hearing, that the parties were married on September 1, 1921. In July of 1986 respondent husband entered a nursing home. Prior to July of 1986 the parties lived together and used their joint income to pay their household expenses. The Hearing Examiner further found that petitioner had needs of $732 per month and a personal income of $248 per month in Social Security benefits and $40 per month in income from savings of $8,500, which income was computed at a return of 5.5%. The Hearing Examiner also found that respondent's income is $549.90 per month from his Social Security and $181.64 per month from his pension. Respondent's needs were found to be $72.51 per day.

Based upon these findings, the Hearing Examiner ordered respondent to pay support to petitioner in the amount of $444 per month.

II. OBJECTOR, RESPONDENT'S ARGUMENT

Respondent Commissioner states that he is defending this action pursuant to subparagraph 3 of section 102 of the Social Services Law. He states that respondent is a recipient of Medicaid. He also states, through the County Attorney, that Medicaid is defined in subparagraph 18 of section 2 of the Social Services Law as public assistance and care. He argues, "It is not health insurance. Its purpose is to supplement, not replace, the assets of the recipient in paying for care." He further argues that when an individual is in receipt of public care, the spouse of such an individual is statutorily responsible for the support of the spouse receiving care, citing the court to section 415 of the Family Court Act. He further notes that pursuant to section 412 of the Family Court Act, a spouse is only chargeable with support of a spouse if possessed of sufficient means. He argues that since respondent is a recipient of public care, he lacks the means to provide support to his spouse. He notes that the Family Court lacks equity jurisdiction and must, in making its determination, balance the needs of petitioner and the ability of the petitioner to contribute to her own support with the respondent's current ability to pay. He notes that respondent's actual needs are much greater than his actual income and that petitioner has savings which are available to her for her own support. The County Attorney argues that there should be no order of support made at this time.

III. ORIGINAL PETITIONER'S ARGUMENT

Petitioner, through a letter of rebuttal, states:

Notwithstanding the prior boot-strap arguments relied upon by this Court in dismissing each of the prior Septuagenarian type cases brought in Onondaga County, and notwithstanding this Court's reluctance to follow the mandate of the Court of Appeals of this State in the Englehardt case previously cited to this Court, that case, which affirmed the reasoning of Septuagenarian, also previously cited to this Court, soundly rejected the very arguments put forth by the County Attorney in his Objections.

Furthermore, although this Court has seen fit to distinguish the prior cases in Onondaga County from Englehardt on the grounds that Englehardt had been a proceeding brought by the Department of Social Services, that distinction is without merit since, as pointed out to this Court on many occasions, in Englehardt, Mrs. Englehardt counterclaimed against the County and it was the counterclaim which was affirmed by the Court of Appeals, a counterclaim which is wholly consistent with and similar to these cases pending before this Court.

The Court of Appeals, in rejecting an appeal in Englehardt, affirmed the Appellate Division, Third Department and effectively held that an individual on Medicaid in New York State has the financial ability to support his spouse in the community, because Section 366(2)(a) specifically provides that the Department of Social Services may not include as available income to a Medicaid recipient that portion of his income which is required under Court order to be applied to the support of his spouse in the community. This Court may continue to disagree with the Court of Appeals, but it may not and should not continue to flaunt that disapproval to the detriment of the elderly residents of our community.

In light of the prevailing case law and the facts and evidence adduced at the Hearing, I respectfully request that the County Attorney's Objections be rejected.

IV. THE DECISION OF THE COURT

A. Denial of Motion for Leave to Appeal to the Court of Appeals

First of all, the court points out that the Court of Appeals has not ruled on this issue. The Court of Appeals has merely denied a motion for leave to appeal in the Englehardt case. Matter of Albany County Department of Social Services, as assignee of Norman Englehardt et al. v. Frances Englehardt, 124 A.D.2d 140, 511 N.Y.S.2d 698 (3d Dept.1987) mot. for lv. to ap. den. (6-9-87). Since such a motion is discretionary with the Court of Appeals and may be denied for a variety of reasons, such a denial does not create a precedent which is binding on the trial courts. As articulated by Cohen and Karger in their authoritative work, THE POWERS OF THE NEW YORK COURT OF APPEALS,

... the rule is clear that the denial [of a motion for leave to appeal] is not to be taken as approval of the decision below. The denial is in no sense an adjudication of the merits of the determination. At 356.

Thus, respondent is incorrect in his assertion that this court is bound by a Court of Appeals ruling on a motion for leave to appeal.

B. The Needs of Petitioner and the Means of Respondent

The court now considers the facts of the case and the arguments of the attorneys in the case. The court finds that the findings of the Hearing Examiner as to the needs of petitioner and the financial ability of petitioner and respondent reflect the evidence put before the Hearing Examiner. While this is a matter of spousal support that involves only the husband and wife as to the need for support and the ability to pay support, the court finds that the Commissioner has a statutory duty to "defend in any court all matters relating to the support of persons at public expense." Soc.Serv.Law § 102(3). Cf.: Matter of Chauvaux, 82 Misc.2d 518, 371 N.Y.S.2d 989 (Fam.Ct.Onon.Co.1975). Here, where petitioner asserts that respondent is a recipient of public assistance and care pursuant to section 365 of the Social Services Law and the Commissioner is put on notice of the proceedings and ascertains that respondent is receiving medical assistance, the County Attorney is entitled to defend this action. The statutory language empowering the Commissioner to defend support matters is all encompassing. The statute refers to "all matters relating to ... support." Thus, there is no question but that the Commissioner, represented by the County Attorney has standing to file an objection to an order of the Hearing Examiner. ONON.CO.CHARTER, N.Y. Art. XIV § 1402(a); Art. VII § 702.

The Family Court is a court of limited jurisdiction. Matter of Thompson, 79 A.D.2d 880, 434 N.Y.S.2d 538 (4th Dept.1980). It may only exercise those powers granted to it by statute. Borkowski v. Borkowski, 38 A.D.2d 752, 330 N.Y.S.2d 106 (2d Dept.1972). The Family Court has no powers of equity. Brescia v. Fitts, 56 N.Y.2d 132, 139, 451 N.Y.S.2d 68, 436 N.E.2d 518 (1982).

Here, petitioner is seeking support from her spouse pursuant to Article 4 of the Family Court Act. Article 4 contains no provision exempting spouses with one spouse in a nursing home from the general eligibility for support set forth in section 412 of the Family Court Act. Indeed, as the County Attorney points out, since respondent is medically indigent, the provisions of section 415 of the Family Court Act must also be considered.

The Family Court has no authority to make determinations as to eligibility for public care. This is essentially what petitioner seeks to have the court do in this matter, for to grant an order of support from respondent's illusory means, cf.: Matter of Rizzuto et al. v. Barbara Blum, as Comm. of N.Y. State D.S.S. et al., 101 A.D.2d 699, 475 N.Y.S.2d 680 (4th Dept.1984) would be transferring public monies to petitioner, public monies this court has no authority to order transferred.

Respondent is receiving public care because he is needy. The Legislature has declared that "medical assistance for needy persons is hereby declared to be a matter of public concern and a necessity in promoting public health and welfare." Soc.Serv.Law § 363. Indeed, care for needy persons is mandated by the New York State Constitution. Section 1 of Article XVII provides: "The aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine."

It is the Commissioner of Social Services who has been designated to provide medical assistance to needy persons. Soc.Serv.Law § 365-a(1)....