Kinsey v. Kinsey

William T. Andrews for petitioner. James E. Joyce for respondent. SICHER, J. There is presented a novel question as to the meaning and effect of chapter 786 of the Laws of 1950 in relation to previously enacted subdivisions (4) and (9) of section 92 and subdivision 4 of section 101 of the Domestic Relations Court Act of the City of New York. That 1950 enactment amended the Domestic Relations Court Act of the City of New York by inserting a new section (§ 92-a) and another subdivision in section 92 (subd. [6-a]) and adding a sentence at the end of subdivision 1 of section 101 as follows:

"§ 92. Powers * * * (6-a) To make an order requiring a wife, if she is of sufficient means, to support or contribute to the support of the husband who is or is likely to become a public charge." (L. 1950, ch. 786,  § 1, eff. April 18, 1950.)

"§ 92-a. Petition for support of husband. The commissioner of welfare of the city of New York, in an appropriate case, may file with the court a petition against a wife who has sufficient means, for the support of the husband who is or is likely to become a public charge." (Added by L. 1950, ch. 786,  § 2, eff. April 18, 1950.)

"§ 101. Legal liability for support. 1. * * * A wife is hereby declared to be chargeable with the support of her husband who is or is likely to become a public charge, and, if possessed of sufficient means, may be required to pay such sum, or any part thereof, as may be necessary to prevent his being or becoming a public charge." (Added by L. 1950, ch. 786, § 3, eff. April 18, 1950.)

Said 1950 enactment left untouched the following previously enacted provisions of Domestic Relations Court Act of the City of New York:

"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." (N. Y. City Dom. Rel. Ct. Act, § 92, subd. [4].)

"To require the support by those legally chargeable therewith of a dependent adult who is unable to maintain himself and is likely to become a public charge; the court to determine and apportion the fair and reasonable sum that each such relative shall be required to contribute, as may be just and appropriate in view of the needs of the petitioner and the other circumstances of the case." (N. Y. City Dom. Rel. Ct. Act, § 92, subd. [9].)

"The parents, the grandparents and the children of a dependent person over seventeen years of age, who has been a resident of the city at any time during the twelve months preceding the filing of the petition for his support, and who is unable to maintain himself and is likely to become a public charge are hereby declared to be severally chargeable with the support of such poor relative. The court shall determine and apportion the fair and reasonable sum that each such person shall be required to contribute, as may be just and appropriate in view of the needs of the petitioner and the other circumstances of the case and their respective means." (N. Y. City Dom. Rel. Ct. Act, § 101, subd. 4; emphasis supplied.)

The foregoing statutory provisions have been quoted in connection with the following facts: The parties first became known to the predecessor Family Court Part of New York City Magistrates' Courts already in 1922. Originally there was an order for wife and child. But the parents are now divorced, each is remarried, and since February 28, 1940, the only order of the successor Family Court Division of this court has been for the son. On that date the prior order was modified to $10.83 semimonthly for support of "Charles, Jr.", then twenty-one years old, on the ground that he was industrially incapacitated by mental defectiveness and epilepsy and therefore likely to become a public charge. On October 15, 1948, respondent's application for suspension of that order was denied (by Justice STITT) because a September 29, 1948, Bellevue Hospital report showed that the son, then thirty years of age, was still physically and mentally disabled to support himself. That Bellevue Hospital report read as follows:

"In accordance with your request `Charles Kinsey, Jr.' was examined at this Clinic on September 8, 1948.

"Our findings indicate that Mr. `Kinsey' shows no psychotic trends. He is a mental defective and has had epileptic seizures of varying frequency since the age of 14. With medication prescribed by his private physician, Mr. `Kinsey' reports that the number of seizures has markedly decreased and that he has not had a seizure for a long time.

"The patient has evidently made a good social adjustment, belongs to two choirs and to a male chorus. He has fair insight into the reactions of people in his environment toward his illness. Patient has evidently been the butt of contention between his mother, with whom he lives, and his father, from whom the mother has been divorced for many years — with the mother on the one hand insisting that `Charles' is unable to work and support himself, and the father refusing to support him any longer.

"The patient's work history includes many unskilled jobs of very short duration, with his last job in 1941. He rationalizes the fact that he has not sought work since then because his mother did not ask him to do so. He is evidently extremely dependent on his mother.

"At this time we believe that Mr. `Kinsey's' employability is very limited. He might be referred for special placement through the New York State Employment Office, Division of the Handicapped, for work in some unskilled job. Placement difficulties would, of course, arise because of his mental deficiency and epileptic seizures. Mr. `Kinsey' reluctantly accepted the idea of special placement, and agreed to accept counselling.

"Diagnosis: Epilepsy and Mental Deficiency."

On September 22, 1950, the parents, the son, and the son's wife were before Justice FOGARTY upon respondent's renewed plea for termination of the order, on the new ground that the son was then married. The son's wife was also present at that hearing, which eventuated in a modified consent order of $12 a month by way of compromise after Justice FOGARTY had called attention to the recently enacted chapter 786 of the Laws of 1950 and had commented as follows on the son's wife's testimony that she was earning about $36 a week:

"The Court: There is your answer. First of all you have to exercise your remedy against the wife. You will have to file a petition against your wife downstairs in order to clear the situation because of the fact of the new amendment that provides the wife has to support the husband if he is apt to become a public charge and he is over the age of 17. But the father has a responsibility because of his handicap but until we exhaust the remedy against the wife I don't think you can go against the father, unless the father is willing to compromise this order and allow something a week to him, because on this amount he may not be able to carry on. * * * Under the new amendment to the law, a wife has to support a husband before he can become a public charge. A husband has to support a wife. The first obligation is the husband's and the wife's and thereafter they can go to the parents." (Excerpts from stenographer's minutes.)

On March 1, 1951, Justice FOGARTY indorsed on the petition:

"Petitioner only. Since my endorsement as of February 6, 1951 it appears that respondent has not been employed since January 18, 1951. Order temporarily suspended, as of 1/18/51. Respondent is ill and unable to work. No arrears exist at this time."

Respondent returned to work about April 1, 1951, and has been earning an average of $72 every ten days. However, he has renewed his application to terminate the order on the ground of present lack of jurisdictional facts sufficient for its continuance. After study of the briefs of counsel and independent research I have concluded that respondent is entitled as a matter of law to termination of this proceeding, without prejudice, however, to the filing of new petitions, as hereinafter specified, when and if "Charles Kinsey, Jr." will in the future have become a recipient of public assistance or likely to become in need thereof. Unless otherwise provided by statutory regulation or contract, "a parent ordinarily is under no legal obligation to support his adult child" (67 C. J. S., Parent and Child, § 17, p. 704). "At common law it was not only the moral obligation but the legal duty of parents to provide for the maintenance of their minor children. There was no common-law duty requiring parents to maintain their children beyond the period of their minority even though the children were without means and unable to earn a livelihood. While there was a moral duty to do so, the common law did not recognize or enforce it. (People v. Hill, 163 Ill. 186; 46 N. E. 796; see, also, Matter of Kane v. Necci, 245 App. Div. 1.) The statute, however, which rests upon a prior moral obligation, imposes such a duty upon a parent if he or she is of sufficient ability and the child is the recipient of public relief or likely to become a public charge." (Betz v. Horr, 250 App. Div. 457, 458; rev. on other grounds, 276 N.Y. 83.) "At Common Law there is no liability of a parent for the support and maintenance of an adult child. It follows that the liability, if any, of the estate in this case is solely statutory. In respect to the imposition of liability upon specified relatives, Section 24 of the Mental Hygiene Law is a statute in derogation is secondary, or whether they are concurrent and the burden thereof apportionable. The point is mentioned merely for future determination when and if the question squarely arises. For the foregoing reasons the application for reinstatement of the suspended order for support of "Charles Kinsey, Jr." is hereby denied, and the cross application by the respondent father for termination of the proceeding is granted. However, the consequent dismissal of this proceeding is without prejudice to the filing of new petitions, by "Charles Kinsey, Jr." (or the Commissioner of Welfare of the City of New York) against the wife and also the parents, when and if hereafter "Charles Kinsey, Jr." would otherwise have become a recipient of public assistance or eligible therefor. 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).