Samson v. Schoen

"Laura Samson", petitioner in person. Samuel Weisman for respondent. On October 20, 1947, both parties were before Justice MARCHISIO, and he indorsed on the petition the following disposition of the respective applications for increase and reduction: "Arrears $120. Order continued, plus $10 a week on arrears. Bond suggested if any further defaults. Paroled. Bail discharged. Respondent pays $60 in open Court to petitioner and the arrears above set are further reduced to $60. First payment on arrears to commence December 1, 1947." On January 8, 1948, at the request of petitioner and her attorney, a warrant was issued by me pursuant to subdivision 1 of section 132 of the Domestic Relations Court Act of the City of New York, because of respondent's failure to comply fully with that October 20, 1947, order and his not answering a summons which had been issued. However, that warrant was vacated by Justice MULHOLLAND on August 12, 1948, on proof that the arrears had then been reduced to $20. Again on May 18, 1950, on petitioner's request, Justice LANZETTA ordered another warrant but stayed its execution to June 12, 1950, on which date Justice MULHOLLAND indorsed on the petition: "Respondent's sister present. Vacate warrant. Adjourned for presence of petitioner to June 26, 1950. Order continued. Notify respondent." On June 26, 1950, neither petitioner nor respondent was present, so that Justice MULHOLLAND indorsed on the petition: "No appearance. No action." On July 27, 1950, at petitioner's request, the proceeding was transferred from New York County to Queens County Family Court because of the removal of petitioner to Queens County. The next material development was a communication from respondent, from California, received November 15, 1950, to the effect that he intended to remit only $10 a week because "David" had attained the age of eighteen years on August 29, 1950. Section 92 of the Domestic Relations Court Act of the City of New York provides:

"In the exercise of its jurisdiction the court shall have power * * *

"(4) To make all orders for support run until further order of the court, except that orders for support of a child shall run until the child is seventeen years of age; or, where there are physical or mental disabilities of the child or other exceptional circumstances that warrant it, in the discretion of the court during such period after seventeen years and beyond the child's minority as such physical or mental disabilities or other exceptional circumstances may continue." (Emphasis supplied.)

On November 3, 1950, Justice MULHOLLAND had indorsed on the petition: "Petitioner and respondent's sister; also Probation Officer present. (Sister's name is `Hannah Schoen'.) Although one child is eighteen years of age, he is attending school and will graduate in June. Order continued to June 29, 1951, for support of both children. Respondent to pay off all arrears on or before January 5, 1951. Notify respondent, with privilege to respondent to appear and raise objections." (Emphasis supplied.) On January 8, 1951, Justice MULHOLLAND made the following further indorsement on the petition: "The current arrears are $30. No appearance today. Notify respondent to make payments regularly and pay all arrears on or before March 1, 1951 — without prejudice to petitioner and respondent to appear and object. Notify parties." (Emphasis supplied.) It should be observed that Justice MULHOLLAND'S November 3, 1950, disposition was made in the absence of respondent and his January 8, 1951, disposition in the absence of both parties and were therefore stated to be without prejudice to a further hearing if unacceptable. On March 1, 1951, Justice MULHOLLAND made the following further indorsement on the petition: "No appearance. Again notify respondent to pay all arrears. Order continued." On August 22, 1951, Justice McCLANCY made the following indorsement on the petition: "Petitioner and respondent's sister present, `Hannah Schoen'. Physical examination of son `David' at the Court Clinic. Case is adjourned to September 21, 1951." That examination was ordered to determine whether "David", then nearly nineteen years old and in college suffered the kind of physical disability contemplated in the concluding sentence of subdivision (4) of section 92 of the Domestic Relations Court Act of the City of New York quoted supra, petitioner having urged that "David" suffered from rheumatic fever. Under date of August 23, 1951, Dr. Philip E. Henig, director of the medical division of this court, made the following report of the examination ordered by Justice McCLANCY:

"`David Schoen', age 18, complains of intermittent attacks of fever for the past year. At 6, he is said to have rheumatic fever and was told he has rheumatic heart disease. There are no other symptoms and no other relevant history. Physical Examination: Patient is an adult male, height 5' 10", weight 157 pounds. Head: Normal. Neck: Normal. Lungs: Clear. Heart: Normal. B. P. 136/80. Abdomen: Normal. Extremities: Normal. Diagnosis: No cardiac disease. Opinion: My opinion is concurred in by a Cardiac Clinic. This boy can engage in unrestricted activity."

That report was presented to Justice PANKEN on September 12, 1951, and thereupon he indorsed on the petition: "Write respondent as directed. Order as to `David' terminated by operation of law. Order continued." (Emphasis supplied.) That ruling expresses the view, which is the "law of the case", that the language of subdivision (4) of section 92 of the Domestic Relations Court Act of the City of New York automatically fixes the seventeenth birthday anniversary as the expiration date of every support order for a child, unless there will have been an express extension on proof of facts within the ambit of the concluding sentence of subdivision (4) of section 92 of the Domestic Relations Court Act of the City of New York. Such concluding sentence has been applied in cases where the child is a mental defective, psychotic, epileptic, or otherwise industrially incapacited. (See, for example, "Kinsey" v. "Kinsey", 200 Misc. 760.) In addition, it is the usual practice in this court to regard a child's need to continue education until graduation from high school as one of the "exceptional circumstances" contemplated by subdivision (4) of section 92 of the Domestic Relations Court Act of the City of New York. However, that practice has not yet been authoritatively approved, the New York Appellate Division, First Department, having expressly declined to pass upon that precise question and reserved it for future determination. (Szilagyi v. Szilagyi, 257 App. Div. 630, affg. 170 Misc. 1009.) So, it is extremely doubtful that a college education would be sanctioned as one of the "exceptional circumstances" contemplated by subdivision (4) of section 92 of the Domestic Relations Court Act of the City of New York. Thus, it has been held by the highest court in New Jersey that a father is "under no legal duty to send his son to a boarding school, no matter what his financial circumstances may be," nor to furnish education beyond what is required and "provided by the school system of the State" (Ziesel v. Ziesel, 93 N. J. Eq. 153; cf. Commonwealth ex rel. Binney v. Binney, 146 Pa. Superior Ct. 374). True, in Herbert v. Herbert (198 Misc. 515), Justice LEVY made an order for support of two children (one of them already over seventeen years of age) which provided an allowance for their college education. But that case is clearly distinguishable; for, it was entered on consent of the father, a man of very large income, the sole issue presented was the amount of the order, and no question was raised as to the lack of subject matter jurisdiction to entertain a mother's application for a child already over the age of seventeen years at the time of the filing of the petition in its behalf (cf. "Mooney" v. "Mooney", 187 Misc. 789). Likewise, the divorce courts have occasionally required a father of amply sufficient means to contribute toward the college education of a gifted child (see, for example, Esteb v. Esteb, 138 Wash. 174; Jackman v. Short, 165 Ore. 626; Hale v. Hale, 132 P. 2d 67); and in Cohen v. Cohen (193 Misc. 106), New York Supreme Court Justice BENVENGA stated: "The contention that the defendant is not compelled to provide more than a public school education is, under the prevailing weight of modern authority, untenable". (P. 107.) However, such decisions are exceptional and rendered in divorce actions where jurisdiction continues during the entire minority. But in creating the Domestic Relations Court of the City of New York the Legislature did not adopt the common-law doctrine, applied in Supreme Court matrimonial actions, that imposes upon each father a duty of support until his child's twenty-first birthday anniversary unless sooner married or self-sustaining. Instead, the Domestic Relations Court Act tied in the parental duty of support with the maximum compulsory instruction age prescribed by the Education Law of the State of New York; as originally enacted (L. 1933, ch. 482), the New York City Domestic Relations Court Act (§ 92, subd. [4]) therefore specified sixteen years of age as the expiration date of an order for support of a child and raised it to seventeen years (the present figure) by chapter 726 of the Laws of 1937 to conform with chapter 789 of the Laws of 1936, which had amended the Education Law to empower the Board of Education in each city of the State to require minors from sixteen to seventeen years of age who were not employed to attend upon full-time instruction (Education Law, § 3205, subd. 3). See "Mooney" v. "Mooney" (187 Misc. 794-797, supra), and the following further comment:

"Significantly, when the Legislature in 1942 conferred, for the first time, upon Children's Courts outside of the city of New York (governed by the Children's Court Act, L. 1922, ch. 547, as amd.) jurisdiction to order support analogous to and patterned on the Family Court Division provisions of the Domestic Relations Court Act of the City of New York, the Legislature followed the common-law rule and the Supreme Court practice in matrimonial litigation by granting to such Children's Courts power to order support during the entire minority of every child (Children's Court Act, § 30-a, subd. 4, as added by L. 1942, ch. 810). And amendments of that section 30-a, subdivisions 1, 3 and 4, by chapter 849 of the Laws of 1945 still further clarified the power of courts governed by that statute to entertain a petition for support of a minor child up to its twenty-first birthday anniversary and to make all orders for his or her support run during, but not beyond, the entire minority.

"Consequently, if respondent herein happened to reside in, say, Westchester County, instead of New York City, he could not have successfully interposed the technical plea of jurisdiction (over a proceeding in behalf of his seventeen-year-old son) which is sustainable in a court governed by the present provisions of the Domestic Relations Court Act of the City of New York rather than the County Children's Court Act.

"This fortuitous difference between a statute relating to New York City and one covering other parts of this State illogically deprives some minor children and over-protects defaulting parents. But only the Legislature can, and should, fill this hiatus in the statute law governing this court and also repair gaps in the parens patriae jurisdiction of the Supreme Court of the State of New York pointed out by Mr. Justice SHIENTAG in Moen v. Thompson (186 Misc. 647, 650, supra) and in the opening paragraphs of this opinion. Meanwhile, there must be circumspection against overstepping the bounds of the legislative grant of enumerated powers to a statutory court of limited jurisdiction." ( "Mooney" v. "Mooney", supra, pp. 797-798.)

Proposals for the further amendment of subdivision (4) of section 92 of the Domestic Relations Court Act of the City of New York by extending the duration of orders for support of a child during the entire minority have not met with the favor of the Legislature or latterly even of the board of justices of this court. It follows therefore that this court's orders for support of a child still expire automatically on the seventeenth birthday anniversary, and that there is no power to heed the mother's plea that respondent be required to contribute toward the cost of "Bertha's" completing her college education to become a teacher. Justice PANKEN'S September 12, 1951, disposition expressly directed that the order as to "David" had terminated by operation of law but seemingly he continued the $20 weekly order The mother was present on both those days but not the father. Instead, the latter's sister attended and in his behalf presented a letter, dated March 28, 1953, but not showing from where it was sent, as follows: "I am writing this in hopes that the case of `Schoen' v. `Samson' will come to an end. Since coming out of the Army in 1944 I have remained single because I could not support a new wife and `David' and `Bertha'. I have recently married again, and now that the children have become of age may I ask the Court at this time to stop my payments to Mrs. `Samson'. I am told that the reason the children did not write me was because Mrs. `Samson' did not have my address. Will you please ask her for me how she managed to write to a former employer of mine also when she needed me to pay the doctor bill for `David'." Because respondent's sister is not an attorney and the relations between her and petitioner are tense and unfriendly I caused probation officer Carfora to notify her that she would not be permitted to represent respondent but should furnish his address to which this memorandum might be sent. In response, on April 29, 1953, the attorney who had represented respondent on the June 7th and June 27, 1946, hearings filed another notice of appearance in his behalf and requested that a copy of this memorandum be sent to that attorney. Inasmuch as "Bertha" attained the age of seventeen years on October 13, 1951, and was then in Queens College, the order for her terminated automatically on that date, although any deposits made thereafter by respondent and remitted to petitioner became the child's property and need not be refunded (N. Y. City Dom. Rel. Ct. Act, § 29, subd. 2). But those deposits may be credited against any claim in the action on the Nevada divorce decree. It appears further that the book arrears accrued on October 11, 1951, were $170, and that since that date respondent deposited a total of $230, so that there are actually now no arrears. For the foregoing reasons the proceeding is hereby now marked "Terminated" and any book arrears cancelled, without prejudice, however, to an action in the children's behalf on the March 1, 1945, Nevada judgment in a court of competent jurisdiction (see "Johnston" v. "Johnston", 177 Misc. 618 and 180 Misc. 741). Notice shall be given 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 (L. 1933, ch. 482).