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Brooke v. Family Court of the

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


decided: December 18, 1969.

JAMES BROOKE, APPELLANT,
v.
THE FAMILY COURT OF THE STATE OF NEW YORK, COUNTY OF BROOME, APPELLEE

Moore and Kaufman, Circuit Judges, and Ryan, District Judge.*fn*

Author: Per Curiam

James Brooke appeals from a denial of his application for a three-judge court pursuant to 28 U.S.C. ยง 2281 (1964).*fn1 On August 11, 1969, the Family Court of Broome County, New York, sentenced Brooke to three months in jail for failure to make support payments to his former wife. As is common practice in such instances, Brooke was given the opportunity to make the support payments ($15 per week, plus $5 arrears per week) in lieu of serving the sentence. Four days later plaintiff sought convocation of a three-judge federal district court to enjoin enforcement of the statute on the ground that it violated his constitutional right to equal protection of the laws.*fn2 The basic claim in Brooke's complaint was that jailing an individual who was on public assistance, out of work, and had a history of alcoholism (all conditions applying to him), violated the equal protection clause of the constitution. His contention is grounded on the argument that those with a sufficient income would not be in arrears, would not be in contempt, and would thus never be subject to imprisonment as a result of non-payment of court-ordered support. Judge Foley in the District Court for the Northern District of New York denied the application.

A similar contention was before this court in United States ex rel. Griffin v. Martin, 409 F.2d 1300 (1969). There we said,

"While we do not quarrel with his contention, citing Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956), that the rich and the poor are entitled to equal justice before the law, no attempt has ever been made by Griffin to explain or justify his disobedience, or to show that he was or is financially unable to comply with the $25-a-week order." 409 F.2d at 1302.

Here the defect is no less fatal. Brooke has failed to allege that he was not willful in refusing to comply with the order of the Family Court. The New York statutory framework applicable to the Family Court clearly contemplates imprisonment only when the contempt is willful.*fn3 In the absence of an allegation that his contempt was not willful, and an indication that he is prepared to prove such allegation, we are compelled by Griffin to regard Brooke's complaint insufficient as a matter of law.

The decision of the District Court is affirmed.

Disposition

The decision of the District Court is affirmed.


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