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FAMILY COURT OF NEW YORK, KINGS COUNTY 1968.NY.41861 <>; 290 N.Y.S.2d 795; 56 Misc. 2d 997 May 28, 1968 IN THE MATTER OF ALICE RAND,*FN* Elias, Schewel & Schwartz (Marvin L. Schwartz of counsel), for petitioner. Philip Wolfson for respondent. Millard L. Midonick, J. Author: Midonick

Millard L. Midonick, J.

Author: Midonick

 Before this court is a petition to enforce a Supreme Court judgment of divorce in respect to (1) the award to their mother of custody of two infant daughters of the marriage, and (2) the arrears and future payments of support and maintenance of the ex-wife and the said children.

The name of the problem presented is "court fragmentation"; the solution is reasonable court unification. The fragmented (post-divorce) family before the court in this proceeding cannot be well served by jurisdiction fragmented into more than one court. The Family Court does not possess the requisite jurisdiction without referral of certain issues from the Supreme Court; and the Supreme Court has neither the simple procedures for this family of marginal income, nor in some areas the auxiliary services to cope with the problems. In this case the solution can be achieved, though with difficulty, because the attorneys for both parties and the court are co-operating as to all procedures. The jurisdiction of the Family Court is generally quite adequate to deal with post-divorce problems in the case of a foreign divorce, but not in the case of divorces adjudged by the Supreme Court of New York.

The troubled family here underwent a divorce in the Supreme Court, Kings County, in 1961. On January 16, 1961, the petitioning mother as plaintiff filed her judgment dissolving the marriage with respondent as defendant, obtaining custody of the two infant daughters of the marriage, the elder now aged 16 and the younger now aged 13 1/2. She also received an award of a modest weekly sum for the maintenance and support of herself and these children, as to which she alleges, and it is found, that respondent fell in arrears for about 12 weeks. The respondent was given weekly visitation rights of which he failed to avail himself. In the course of time, the respondent remarried, and the petitioner acquired a paramour in what is known as a stable household relationship.

More immediately, the younger daughter found her mother's paramour disagreeable, which led her to transfer her residence without her mother's permission to the home of her father and stepmother, even though she was no longer familiar with her father or his home. The elder daughter accompanied the younger one for the first three months (January to March, 1968), in order to afford companionship to the younger one, but the elder daughter returned to her mother's home in March, 1968, asserting that her father's home is not adequate due to his history of emotional instability (he has required electric shock and other therapy), his alleged alcoholism, the alleged inadequate diet available for the girls, and overpermissiveness in supervision of the girls.

The older girl does not wish to visit her father at this time, and is anxious, as is the mother, for the younger girl to return to the home of the mother in whose custody the 1961 decree placed both children. The younger daughter refuses to return to the home of her mother and the paramour, although she did not resist weekly visitation to her mother and sister as suggested temporarily by this court.

Modification in this single court, of the Supreme Court judgment for support and maintenance, is relatively easy to accomplish; but the abysmal jurisdictional gap in the power of this court to modify, deal with or even to enforce the custody or visitation order of the Supreme Court is astonishing. Even support modification is not simple to resolve because support depends in part on whether the younger daughter is returned to mother or remains with father.

Thus our statutory and constitutional scheme is substantially frustrated by lack of an adequate remedy in any single court, and this troubled family is saddled with the unnecessary burdens of a multiplicity of courts.

By improvisation entailing wasteful effort (including a three-page stipulation and Supreme Court order), and requiring consent as to procedure, from both parties and from the Supreme Court, lest technical litigation in the Supreme Court be needed, I have gathered together all of the strands of jurisdiction into this court. Resort is made to the Supreme Court for its stipulated consent order referring the missing jurisdictional aspects to the Family Court. But such complication, which erects road blocks often in this court if a prior Supreme Court matrimonial or habeas corpus judgment is in effect, is respectfully referred as the subject of inquiry and study by our Legislature for possible remedial amendment of the laws of this State. This problem will assume serious proportions for the first time now that local, as distinct from foreign, divorces have become permissible on grounds of cruelty, abandonment, imprisonment, judicial and contractual separation for two years (as well as adultery), under the 1966 revision broadening the grounds for divorce in New York. (L. 1966, ch. 254.)


An interlocutory judgment of divorce was granted by the Supreme Court, Kings County, in January, 1961 and became final as of course in April, 1961. This judgment predated the creation of the Family Court and the effective date of the current judiciary article of the Constitution, both of which took effect on September 1, 1962. Under these circumstances, a thoughtful opinion, Giancursio v. Giancursio (42 Misc. 2d 868) maintains that a Supreme Court order of referral is a prerequisite of Family Court jurisdiction even as to support enforcement or modification. The reasoning is simply that the New York Constitution (art. VI, § 13, subd. c) gives jurisdiction to Family Court to determine applications in matrimonial Supreme Court actions, with the same powers possessed by the Supreme Court, only when referred to the Family Court from the Supreme Court. In Giancursio it is acknowledged that the Legislature appropriately provided that silence or inaction on the part of the Supreme Court amounts to a referral, by deliberate abstention, to the Family Court (Family Ct. Act, §§ 461, 466); but that such silence or inaction by the Supreme Court in exercising the legislatively granted power to retain exclusive jurisdiction cannot be taken as such deliberate abstention if the Supreme Court gave its judgment before the present constitutional and statutory powers of referral by abstention existed.

But it seems logical to go further, once the new Constitution and Family Court Act took effect, to hold that continued inaction by the Supreme Court thereafter is tantamount to the same silent or implicit referral to Family Court in respect to the enforcement or modification of support aspects of matrimonial decrees. True in Giancursio (supra), the respondent opposed petitioner's application in Family Court for a modification of the Supreme Court award of support, and so the respondent was in effect applying for consideration of whether the issue of referral should be resolved by the Supreme Court at this first opportunity; consequently, in that case the Family Court properly transferred the issue of referability to the Supreme Court.

But here, both parties are content with Family Court exercising power to resolve the issue of support enforcement and/or modification, and so the issue of referral is not being raised. Such a moot aspect need not be passed upon by the Supreme Court, even though its 1961 judgment in this case also antedated the Family Court Act and the current judiciary article of the Constitution; the Supreme Court is truly silent on the exercise of its authority to retain exclusive jurisdiction over its judgment simply because neither party is requesting the Supreme Court to speak.

To carry consistency to the ultimate limit, it may well be that even a current Supreme Court judgment dissolving a marriage, which is silent on the issue of referral to Family Court for support enforcement, requires a transfer to Supreme Court if the respondent in Family Court raises by motion the issue of referral. (Cf. N. Y. Const., art. VI, § 13, subd. c.) Perhaps a temporary order of support with a stay of final order in Family Court would suffice to give the ...

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