192 Misc. 784 | N.Y. Sup. Ct. | 1948
This is a motion to dismiss the complaint for alleged insufficiency and on various other grounds. The pleading alleges that plaintiff was divorced from defendant by a final decree of a Florida court, and that the custody of the minor children was awarded to plaintiff. It is further averred that plaintiff presently has the custody of the children and that she, the children, and the defendant for some time have been and now are residents of this State. It is further alleged that the final decree of divorce embodied the terms of a separation agreement between the parties pursuant to which defendant agreed to pay plaintiff for the maintenance and support of each child $104.17 per month, later increased to $166.67 per month,
No plenary action may he maintained in the courts of this State for an allowance to the wife for the support of the children of the marriage either under the provisions of the Civil Practice Act or otherwise except in matrimonial actions. It follows that no such action may he prosecuted in this court solely for the purpose of modifying the provisions of a decree of a sister State in respect of the allowance to be made for the support of the children of the parties. In Johnson v. Johnson (206 N. Y. 561) the court, in an opinion'by Judge Hiscock, later Chief Judge, said (pp. 565-566):
“ The most that can he claimed in behalf of the action for the purpose of bringing it within the class named is that the parties having agreed on a separation and an allowance, the plaintiff desires to have the court now fix an allowance for support as it may have done if it had originally secured jurisdiction in an action decreeing separation. The court, however, has no power to entertain jurisdiction of an action for such limited purpose under the powers conferred upon it in matrimonial actions. It is settled that, the only jurisdiction which it possesses in such actions is that conferred upon it by statute and some further minor powers necessarily incident to the exercise thereof. {Erkenbrach v. Erkenbrach, 96 N. Y. 456.)
‘ ‘ Coming to the particular class of matrimonial actions most nearly resembling the present action, it has been held that the court has no jurisdiction of an action brought merely to secure maintenance and support or alimony, there being no prayer for a decree of separation, and in such an action has no power to award alimony or counsel fees pendente lite. Such an action is not provided for by statute, as the essential feature necessary to give the court jurisdiction in an action for separation is a prayer for that particular relief. (Ramsden v. Ramsden, 91 N. Y. 281.) ”
As this court could not grant judgment in an independent plenary action modifying the amount fixed by a matrimonial
It follows that the complaint fails to state a good cause of action. It is "accordingly unnecessary to consider the question whether the Florida court has the power to modify a final decree of divorce by increasing the amount therein provided for the support of children in a case where that amount was fixed by agreement of the parties which was embodied in the decree. The cases submitted in plaintiff’s brief do not involve a situation where the amounts fixed in the decree were by agreement of the parties, and it is not at all clear that the allegations of paragraph ninth that the Florida court has power to modify the decree in respect of the amounts to be paid for the support of the children is a correct statement of the Florida law.
The motion to dismiss is granted on the ground that the complaint fails to state a good cause of action, and on the ground that the court has no jurisdiction of the subject of the action.