Walker v. Walker

Max Krupp for petitioner. Philip Kranzbaum for respondent. nor even in a habeas corpus proceeding concerning the custody of the children. (See Matter of MacAlpine, 50 N. Y. S. 2d 232, and cases therein cited, affd. sub nom. People ex rel. MacAlpine v. MacAlpine, 267 App. Div. 952; People ex rel. Geismar v. Geismar, 184 Misc. 897, 911). For, the Supreme Court has power to direct support solely as an incident to a divorce, separation or annulment action (Matter of Bedrick v. Bedrick, 151 Misc. 4, affd. 241 App. Div. 807; Moen v. Thompson, 186 Misc. 647). Therefore, at the present juncture the Family Court Division of the Domestic Relations Court of the City of New York has exclusive jurisdiction to order support, for the petitioner's children (see Helman v. Helman, supra, and cases cited). Pertinent provisions of the statute governing this support proceeding are Domestic Relations Court Act of the City of New York, section 92 (Powers), subdivisions (1), (3), (4), (11), (16); section 103 (Residential jurisdiction), subdivision 1; section 111 (Petition); section 118 (Efforts at conciliation); section 137 (Divorces, etc.) subdivision 1; section 151 (Undertaking for support) and especially the following:

"§ 2. Definitions. * * * (11) The person for whom support is asked shall be known as the petitioner * * *. (12) The person legally chargeable with the support of a * * * child * * * shall be known as the respondent."

"§ 29. Support bureau. * * * 2. Any and all moneys paid into the support bureau of a family court division of the domestic relations court of the city of New York for the support of a * * * child * * * shall upon payment into such support bureau be deemed for all purposes to be the property of the * * * child * * * for whom such money is to be paid; except that where a petition is signed and a proceeding is instituted to obtain support for a child * * * all money or moneys paid pursuant to order entered in such proceeding may be collected by the petitioner in such proceeding who shall be accountable to the person for whose benefit the proceeding is brought for the proper use of such moneys."

[The last-quoted provision avoids the complications of formal guardianship, subject to the father's right to explore and be heard as to whether the support moneys are being applied to the child's personal use. (See Adams v. Adams, 272 App. Div. 29; cf. "Almandares" v. "Almandares", 186 Misc. 667, 675-676, and "Buenos" v. "Buenos", 189 Misc. 262, 264-266.)]

"§ 101. Legal liability for support. 1. A husband is hereby declared to be chargeable with the support of his * * * children and if possessed of sufficient means or able to earn such means, may be required to pay for their support a fair and reasonable sum according to his means, as may be determined by the court."

"§ 129. Procedure at hearings; rules. Hearings shall be conducted in accordance with such rules as the board may adopt."

"§ 12. Rules and regulations of the board. It shall be the duty of the board to make rules and regulations governing the following subjects: * * * 2. Regarding practice and procedure in the courts".

"§ 131. * * * presumptions. * * * In any such hearing or trial wives and husbands shall be competent witnesses against each other * * *; a respondent shall, prima facie, be presumed to have sufficient means to support his * * * child."

And, Family Court Rule XIII, adopted August 6, 1946, pursuant to sections 12 and 129 of the Domestic Relations Court Act, provides in relation to "Procedure on Hearing For Original Support Order":

"(a) No written answer to the petition or other formal pleading is required.

"All the allegations of the petition shall be deemed to be denied, and the Court shall receive all competent evidence offered in proof or disproof of such allegations and any affirmative defense thereto.

"(b) The Court, in its discretion, may require any party or witness to testify (subject, however, to his or her constitutional rights) and may defer decision of a motion to dismiss the petition until all available evidence shall have been taken.

"(c) Hearings shall be conducted without unnecessary formality but in accordance with due process and common law principles of evidence (except as otherwise expressly provided in these Rules of Practice or by Domestic Relations Court Act of the City of New York or by any portions of the Civil Practice Act when incorporated, by reference, either in Domestic Relations Court Act of the City of New York or in these Rules of Practice)." (Bender's Court Rules [1st ed.], p. 368. See Loomis v. Loomis, 288 N.Y. 222, 225.)

Petitioner's counsel, in turn, contended that because of respondent's instability and past nonperformance his offer of voluntary, direct payments was unacceptable, and that the children must be safeguarded by authoritative court intervention. chargeable with the support of the two dependent children named in the petition, according to his means; and he is, therefore, hereby ordered and directed to pay into this court, until further order, for their support the following sums: (1) $25 a week, each and every week, beginning April 18, 1950, until further order of the court; (2) in addition, the sum of at least $10 a week, each and every week, beginning May 2, 1950, on account of today's temporary order arrears of $325, until such arrears will have been paid in full; such temporary order arrears being carried over and made part of today's final order, pursuant to Family Court Rule XIV. To assure compliance with today's order, respondent is hereby ordered to post, by 10:00 A.M. on May 2, 1950, a cash bond in the sum of $300, or in a default of furnishing such surety to stand committed to the warden or keeper of the City Prison or Jail, or Workhouse of the City of New York for a period of four months from date of commitment, or pending further order of the court (see N. Y. City Dom. Rel. Ct. Act, § 92, subd. [11]; § 151, § 154, and Monroe v. Monroe, 45 N. Y. S. 2d 589; also Family Court Rule XXXVI; Bender's Court Rules [1st ed.], p. 374). Such deposit shall stand as security for all payments accruing on today's order until May 1, 1951; and if sooner exhausted by drafts thereon in consequence of respondent's default, a further bond may be requested under section 159 of the Domestic Relations Court Act. It is reported that the parties have sensibly made amicable visitation arrangements. When and if there arise any future controversy concerning visitation, that phase may be scheduled in ordinary course for disposition by the Justice then sitting. But any dispute concerning visitation shall not affect or impair respondent's duty to comply with today's support order, unless and until otherwise expressly directed. (See Grossman on New York Law of Domestic Relations, § 162, and cases cited; also, the discussion in "Almandares" v. "Almandares", 186 Misc. 667.) Notice shall be given to the parties pursuant to the subjoined direction. [*] The opinion as filed sets forth the true names of all parties but as here published substitutes fictitious names and disguises certain other details, in consonance with the spirit of section 52 of the Domestic Relations Court Act of the City of New York (L. 1933, ch. 482).