This is a proceeding commenced by petitioner for an upward modification of the support provisions of an Alabama divorce decree from $100 a month to $260 a month. The action was initiated pursuant to subdivision (c) of section 466 of the Family Court Act.
The facts are undisputed. On January 2, 1951, petitioner and respondent entered into a separation agreement providing inter alia that respondent shall pay to petitioner the sum of $100 a month for her support during her lifetime, or until she shall remarry and that the agreement shall be incorporated in, but not merged with, any divorce decree. Petitioner was subsequently granted a divorce in the State of Alabama on the ground of the adultery of respondent. The terms of the separation agreement were incorporated by reference but not merged with the divorce decree. The respondent has to the present time observed and complied with the terms and conditions of the said decree and separation agreement.
Paragraph 5 of the instant petition reads as follows:
"5. That since the entry of said decree (order) there has been a change of circumstances in that
"(a) The petitioner's living expenses are greater,
"(b) The petitioner's medical expenses have increased,
"(c) The cost of living has increased,
"(d) The respondent's income has increased."
Respondent resists this proceeding and moves for dismissal without a hearing on the following grounds: (1) The Family Court does not have jurisdiction of the subject matter of the instant proceeding because it involves an out-of-State divorce decree granted to petitioner on the ground of the adultery of the respondent; that this proceeding therefore is not a new class of action since the Supreme Court of the State of New York had jurisdiction to modify such out-of-State divorce decrees prior to the enactment of subdivision (c) of section 466 of the Family Court Act effective September 1, 1965 (Domestic Relations Law, §§ 243, 245); and therefore the jurisdiction which the Legislature attempted to confer upon the Family Court under subdivision (c) of section 466 of the Family Court Act was not constitutional because it did not create a "new class of action and proceeding" as required by article VI (§ 7, subd. c) of the Constitution of the State of New York.
In brief, respondent contends that subdivision (c) of section 466 of the Family Court Act grants jurisdiction to the Family Court to entertain proceedings seeking enforcement of out-of-State divorce decrees and modification of such decrees provided said divorce decrees were granted for reasons other than adultery, the only ground recognized in this State prior to September 1, 1967, the effective date of the new divorce law.
Respondent insists that Matter of Seitz v. Drogheo (21 N.Y.2d 181) upheld the jurisdiction of the Family Court only as to divorce decrees granted for reasons other than those recognized by this State.
This court takes issue with respondent's contention, reasoning and interpretation. In Matter of Seitz v. Drogheo (supra) the Court of Appeals significantly and specifically directed its attention to all matters that in its opinion constitute "new classes of actions and proceedings." Judge Keating on behalf of the majority stated as follows (p. 185): "The 'new classes of actions and proceedings' as to which the Legislature is permitted to confer jurisdiction in other courts, concurrently with Supreme Court, are those which the Supreme Court -- absent the statutory authorization -- would be without jurisdiction to entertain -- actions and proceedings which were unknown at common law. (Thrasher v. United States Liab. Ins. Co., 19 N.Y.2d 159; Langerman v. Langerman, 303 N. Y. 465; Matter of Steinway, 159 N. Y. 250, 255-258.)
"At common law the courts of this State had no jurisdiction over matrimonial matters and, hence the power of the Supreme Court over such matters is derived solely by virtue of statutory grants of authority. ...