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SOPHIE DANIELS v. JOHN DANIELS (10/31/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT


October 31, 1968

SOPHIE DANIELS, APPELLANT,
v.
JOHN DANIELS, RESPONDENT

Appeal from order of Erie Special Term dismissing proceeding for alimony and counsel fees.

Bastow, P. J., Williams, Marsh, Witmer and Henry, JJ.

Memorandum: Pursuant to section 244 of the Domestic Relations Law the plaintiff moved in Supreme Court for judgment for arrears in support payments ordered in a judgment of separation together with counsel fees, disbursements and restoration of support payments directed to be made by the judgment of separation. Subsequent to the judgment of separation the plaintiff sought to enforce the support provisions in various proceedings in Family Court and in Supreme Court in proceedings transferred to Family Court. Various modifications of the provisions for support were made by Family Court. Special Term properly denied plaintiff's motion and granted defendant's cross motion to dismiss plaintiff's application. Under subdivision (c) of section 466 of the Family Court Act the Family Court had jurisdiction to entertain plaintiff's applications to enforce the separation decree and in the exercise of sound discretion to modify it. Under the statutory scheme provided by article 4 of the Family Court Act the Supreme Court would not retain jurisdiction to enforce its original decree after it had been modified by Family Court. By the final paragraph of its order Special Term provided: "That the parties shall hereafter be precluded from initiating any proceedings or from proceeding in any manner for collection of support arrearages or support, or for reconsideration of support, or to punish for non-payment of support in this Court." Such a blanket preclusion goes beyond the authority of the court in this proceeding and in fact was not sought in any of the moving papers.

Disposition

 Order unanimously modified by deleting the final paragraph and as modified affirmed, without costs.

19681031

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