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ELEANOR B. MARTIN v. SIGURD MARTIN (12/18/68)

FAMILY COURT OF NEW YORK, ULSTER COUNTY 1968.NY.43987 <http://www.versuslaw.com>; 296 N.Y.S.2d 453; 58 Misc. 2d 459 December 18, 1968 ELEANOR B. MARTIN, PETITIONER,v.SIGURD MARTIN, RESPONDENT Abram F. Molyneaux, County Attorney (Richard W. Griggs of counsel), for petitioner. Edward G. Galian for respondent. Hugh R. Elwyn, J. Author: Elwyn


Hugh R. Elwyn, J.

Author: Elwyn

 This proceeding is brought by a divorced wife residing in the State of California pursuant to the Uniform Reciprocal Enforcement of Support Act (California Code Civ. Pro., tit. 10a, part 3, §§ 1650-1690) and received by this court as the appropriate court of the responding State pursuant to the New York Uniform Support of Dependents Law (Domestic Relations Law, art. 3-A) for the purpose of obtaining an order requiring the respondent to support his dependents.

According to the petition the parties were married at New Haven, Connecticut on June 9, 1945 and were subsequently divorced in the State of Chihuahua, Republic of Mexico, on July 19, 1967. The Mexican divorce incorporated by reference a separation agreement pursuant to which the defendant in that action, the respondent in this proceeding, was required to pay the sum of $500 per month for the support of the petitioner and her two daughters, also 20% of any salary increases realized by him after the date of the separation agreement, and to furnish the plaintiff with copies of his Federal income tax returns. The petition alleges the respondent's failure to make the support payments ordered by the Mexican court; claims arrearages in the amount of $1,927.50; and prays that the court find that the defendant owes a duty of support to the petitioner and a dependent minor child and that the court enter an order compelling the defendant to support his dependents.

If New York State had adopted the Uniform Reciprocal Enforcement of Support Act so that New York law contained the same provisions with respect to whom a duty of support is owing as does California's*fn1 then the New York courts would undoubtedly be required under the provisions of such reciprocal legislation to enforce the duty of support owing a former husband to his former wife imposed upon him by a foreign divorce decree (Government of Virgin Is. v. Lorillard, 358 F. 2d 172).

However, the Uniform Reciprocal Enforcement of Support Act of California and the New York Uniform Support of Dependents Law are not identical, and although substantially similar (Landes v. Landes, 1 N.Y.2d 358), there is a substantial difference in respect to the persons liable for the support of dependents (Ross v. Ross, 206 Misc. 1073, 1075) and in the matter of procedural detail (Matter of County of Santa Clara v. Hughes, 43 Misc. 2d 559, 564-565). Moreover, in resolving the legal rights and liabilities of the respective parties, this court, where there are differences, is governed by the New York, rather than the California statute (Matter of County of Santa Clara v. Hughes, supra, p. 565; Matter of Trent v. Loru, 57 Misc. 2d 382, 386) so that if any relief is to be given to the petitioner in this State it must be under New York rather than California law (Ross v. Ross, supra, p. 1076).

The declared purpose of the New York Uniform Support of Dependents Law is "to secure support in civil proceedings for dependent wives, children and poor relatives from persons legally liable for their support" (Domestic Relations Law, § 30). Section 32 of the Domestic Relations Law entitled "Persons legally liable for support of dependents" declares that " For the purpose of this article, the following persons in one state are declared to be liable for the support of dependents residing or found in the same state or in another state having substantially similar or reciprocal laws * * * 1. Husband liable for support of his wife". (Emphasis supplied.)

The liability of a husband to support his wife depends upon the existence of a valid marriage and the continuance of the relationship of husband and wife. When that relationship ceases to exist the Family Court has no power to order support on behalf of an ex-wife (Matter of Carter v. Carter, 19 A.D.2d 513; Fishberg v. Fishberg, 16 A.D.2d 629; Matter of Travis v. Travis, 54 Misc. 2d 575; Matter of Glass v. Glass, 57 Misc. 2d 76; " Davies" v. "Davies ", 187 Misc. 313; Liss v. Liss, 77 N. Y. S. 2d 242; Pinto v. Pinto, 91 N. Y. S. 2d 124). Consequently, the New York Uniform Support of Dependents Law which makes a "husband liable for support of his wife" (Domestic Relations Law, § 32, subd. 1) has been held to exclude any liability of a divorced husband for the support of his former wife (Matter of Fleischer v. Fleischer, 24 A.D.2d 667; Ross v. Ross, 206 Misc. 1073).

However, both Matter of Fleischer v. Fleischer, and Ross v. Ross (supra) were decided prior to the amendment of subdivision (c) of section 466 of the Family Court Act which conferred upon the Family Court jurisdiction to entertain an application to enforce the order or decree granting alimony of "a court of competent jurisdiction not of the state of New York" (Family Ct. Act, § 466, subd. [c]; L. 1965, ch. 355, eff. Sept. 1, 1965). This jurisdiction includes the power to enforce the support provisions of a Mexican divorce decree (Matter of Seitz v. Drogheo, 21 N.Y.2d 181; Kagen v. Kagen, 21 N.Y.2d 532; Matter of Thaler v. Thaler, 29 A.D.2d 688; Gutillo v. Gutillo, 30 A.D.2d 484).

The question presents itself as to whether the provisions of subdivision (c) of section 466 of the Family Court Act, which is a part of article 4 entitled "Support Proceedings", may be interpolated into the New York Uniform Support of Dependents Law (Domestic Relations Law, art. 3-A) so as to afford relief in this reciprocal support proceeding to a divorced wife who has a Mexican decree incorporating a separation agreement providing support payments for her benefit.

In one of the earliest reported decisions construing the New York Uniform Support of Dependents Law the court declined to stretch the declared purpose of the act "to secure support * * * for * * * poor relatives" to impose liability upon five adult children residents of New Jersey for the support of their father, a resident of New York, since at common law no duty rests upon a child to support his parent and no express provision imposing such liability was to be found in the statutes (" Vincenza" v. "Vincenza ", 197 Misc. 1027). The court said (p. 1032): "The boundaries of the New York Uniform Support of Dependents Law cannot be enlarged by the implications of other statutes but are fixed by the four corners of chapter 807 of the Laws of 1949, as amended."

This conclusion was predicated upon the basic principle of statutory construction that any omission is to be remedied by the Legislature, not by the courts. If the Legislature fails to insert such provisions in the law as will accomplish the result intended, their omission cannot be remedied by construction, and the law must be considered to that extent defective and inoperative. (McKinney's Cons. Laws of N. Y., Book 1, Statutes, § 363; Furey v. Town of Gravesend, 104 N. Y. 405, 410; McKuskie v. Hendrickson, 128 N. Y. 555, 558; Matter of Second Ave. M. E. Church, 66 N. Y. 395; Kennahan v. City of New York, 162 App. Div. 364, 365, 366.)

Moreover, the court in " Vincenza" v. "Vincenza " (supra, p. 1032) held that former section 8 of the Uniform Support of Dependents Law (L. 1949, ch. 807; now Domestic Relations Law, § 41, entitled "Construction of act") did not have the effect of incorporating other statutes by reference.

A more recent decision supporting a narrow construction of the Uniform Support of Dependents Law is Matter of Dannheim v. Babbitt (48 Misc. 2d 310) in which the Family Court declined to expand the law's coverage and held that section 438 of the Family Court Act authorizing the court to allow counsel fees was inapplicable to a reciprocal support proceeding under the Uniform Support of Dependents Law, with the result that an application for counsel fees was denied.

Conversely, in Matter of Trent v. Loru (57 Misc. 2d 382) the Family Court left uncurtailed the coverage of the Uniform Support of Dependents Law which permits the court to base an adjudication of paternity on a respondent's acknowledgment of paternity in open court, regardless of the lapse of time since the child's birth, by holding that the two-year time limitation upon the commencement of paternity proceedings imposed by ...


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