Messina v. Messina

SICHER, J.

John P. McGrath, Corporation Counsel (Mathilda Miller of counsel), for petitioner. Louis B. Frutkin for respondent. SICHER, J. There are presented aspects of the relations between the summary support jurisdiction of this court and the matrimonial actions jurisdiction of the Supreme Court of the State of New York. The parties were the principals in an April 19, 1942, duly performed marriage ceremony. Their union has been childless. Indeed, on December 28, 1945, petitioner commenced in the Supreme Court, New York County, an action for annulment on the ground of alleged fraudulent concealment of respondent's intention never to procreate children. Respondent interposed an answer and the action remained dormant until entry of a May 18, 1950, order permitting withdrawal of that answer and referring the matter to an Official Referee pursuant to the customary practice. On the Referee's report that the wife was entitled to a judgment annulling the marriage for fraud, an interlocutory judgment support still in force. As previously commented: "If respondent institute an action for separation, divorce or annulment while in default under a support order of this court, Matter of Costa v. Costa (supra) seems to me not to oust this court of jurisdiction in respect of any arrears under such order nor automatically to cease its operation prospectively, even though petitioner might not be likely to become a public charge. Otherwise, the mere service of a summons and complaint in such action would be a facile device for flouting the order of this court. However, if petitioner, not content to rely upon the previously procured Family Court order, moves for a pendente lite order for alimony or maintenance in such Supreme Court action, the support order of this court would cease to operate prospectively as at the date of the entry of such pendente lite order". ("Varney" v. "Varney", 178 Misc. 165, 172. Cf. "Santora" v. "Santora", 199 Misc. 335.) 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 of the City of New York (L. 1933, ch. 482. as amd.).