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Wife Appeals Denial for Child Support Arrears

A New York Family Lawyer said in a matrimonial action in which the parties were divorced by judgment, the plaintiff wife appeals from an order of the Supreme Court, Nassau County, which denied her motion for leave to enter a judgment for child support arrears.

A Nassau County Family attorney said that the plaintiff and the defendant were married in Glendale, New York in 1959. They separated in 1980 when the defendant moved to California, and were divorced by a 1982 judgment of the Supreme Court, Nassau County, which awarded custody of the parties’ unemancipated children to the plaintiff. The 1982 judgment was subsequently amended by a judgment, which required the defendant to pay child support in the sum of $50 per week for each unemancipated child.

A New York Custody Lawyer said in 1985 the plaintiff commenced a proceeding in the Nassau County Family Court pursuant to Domestic Relations Law article 3-A, the Uniform Support of Dependents Law (hereinafter USDL), seeking an increase in support for the parties’ two youngest sons. The proceeding was thereafter transferred to the Los Angeles County Superior Court, and thereafter, that court issued an order directing the defendant to make increased support payments of $300 per month per child until the children reached the age of 18, which is the age of emancipation under California law. When the children reached the age of 18 six months later, the California court terminated the defendant’s obligation to make support payments on his behalf through the court trustee. After the youngest son reached the age of 18 in 1988, the California court trustee administratively closed its case.

A Nassau County Family Lawyer said shortly after the youngest child’s 18th birthday, the plaintiff moved, inter alia, for a money judgment for support arrears under the 1983 amended divorce judgment. The Supreme Court denied her motion, concluding that the provision in the USDL support order by the California court which required the defendant to provide support only until his sons reached the age of 18 modified the New York divorce decree.

The Court disagrees.

A Nassau County Custody Lawyer said the purpose of the USDL is to obviate jurisdictional and procedural problems inherent in the enforcement of a support order in a different state, and to provide an expeditious means for dependent spouses and children to obtain support without the necessity of traveling to a distant state. However, a USDL proceeding is “not intended to modify or supersede any already existing support obligations, and is not affected by any other support proceedings, orders, or judgments” Rather, Domestic Relations Law § 41(1) expressly provides that the USDL shall be construed as providing an “additional or alternative civil remedy and shall in no way affect or impair any other remedy, civil or criminal, provided in any other statute and available to the petitioner in relation to the same subject matter”.

To construe the California USDL order as a modification of the New York divorce decree would impair the plaintiff’s right to obtain a money judgment for arrears which have accrued pursuant to that decree and pursuant to New York law, which obligates a parent to support his or her children until age 21 such a result would be contrary to the character of the USDL as an “additional or alternative” remedy, the court remit this matter to the Supreme Court for a hearing to determine child support arrears due pursuant to the 1983 amended judgment of divorce, and in accordance with Domestic Relations Law § 244. At the hearing the Supreme Court must also address the plaintiff’s application to recover expenses incurred in representing herself in this enforcement proceeding pursuant to Domestic Relations Law § 238, which permits a court in its discretion to require a spouse to pay his wife’s expenses “in bringing, carrying on, or defending such action or proceeding”

In another case, an application pursuant to sections 101 and 104 of the Social Welfare Law and section 914 of the Code of Criminal Procedure for an order directing the payment by the respondent of sums heretofore advanced by the Welfare Department of the County of Nassau for the support and maintenance of the respondent’s daughter and the daughter’s child.

The daughter is 19 years of age. She has been living separate and apart from the respondent’s household for about two years. A child has been born to her out of wedlock.

The Legislature has authorized a recovery from a parent or grandparent of public funds expended for the support of a child or grandchild. And as stated in a case: ‘There is nothing in the language of §§ 101 and 104 of the Social Welfare Law which requires the Commissioner of Welfare to exhaust his remedies against relatives in any particular order as a prerequisite to recovery’ Therefore, even though the court may sympathize with a respondent for the burden cast upon him by a wayward child, in view of the statutes and the fact that the right to a recovery is not made dependent by the statutes on a showing that an amicable relationship existed between parent and child, or that the child was unemancipated, an order must be signed for the recovery of such sum as the respondent is able to pay, taking into consideration the family needs present and future of the respondent and the sums necessarily spent or to be spent for the care and maintenance of the daughter.

With respect to the child born out of wedlock to the daughter, however, there is no obligation imposed by statute on the respondent. At common law ‘the illegitimate was not to be regarded as the child or descendant of any one’. ‘It is a rule of construction that, prima facie, the word ‘child’ or ‘children,’ when used in a statute, will, or deed, means legitimate child or children. In other words, bastards are not within the term ‘child’ or ‘children.” An illegitimate child was held not responsible for the support of an indigent mother in a case law, the Court holding that it would be inconsistent for the Legislature to impose such obligation when it gave extremely limited rights of inheritance and support to illegitimate offspring.

By recent statutes the natural parent of a child may be required to support said child. The Legislature, by its very limitation of support to the natural parents, obviously intended that as to other provisions for support, only legitimate children were to be considered.

The respondent will be directed to pay sums necessarily expended for the support and maintenance of the respondent’s daughter. On the evidence it appears that the respondent’s gross income is $9,975 .00.

The respondent is entitled to credits of $7,668.44, representing income taxes paid in the amount of $1,172.44 and an exclusion of $6,496.00 as computed by the petitioner. In addition, the respondent is entitled to a credit of at least $1,000.00 for additional medical expenses and miscellaneous expenses not computed by the petitioner in the figure of $6,496.00. Based upon this the Court finds that the extent of the respondent’s liability for the support of his daughter is $50.00 a month.

Accordingly, the respondent is directed to pay $650.00 towards the sums expended by the petitioner through the month of June, 1962, and $50.00 a month commencing July 1, 1962, and monthly thereafter as long as sums equal to or in excess thereof are necessarily expended by the petitioner for the daughter’s support alone. The respondent is directed to pay the amount of $650.00 at the rate of $20.00 per month commencing October 15, 1962.

After a divorce decree was issued by a court, the rights of the children of the separating parties should be secured. Here in Stephen Bilkis and Associates, our Nassau County divorce attorneys determine as to whether there is a valid ground for the dissolution of the marital bonds of the parties. After which, our Nassau County Child Support lawyers will help you obtain a support from said parents. Call us now.

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