107 Misc. 2d 217 | N.Y.C. Fam. Ct. | 1980
OPINION OF THE COURT
On September 29,1980, this court was confronted with a unique situation. The respondent herein appeared pursuant to a Uniform Support of Dependents Law petition (Domestic Relations Law, art 3-A) for support of his five-year-old daughter of a previous marriage. The child lives with her mother in Puerto Rico.
The respondent’s position is that he cannot support this child “A” as he is now a “house husband” and has no income of his own. He is remarried and has a young child of the second marriage. His position, stated for the record in the courtroom, is that he does not work and does not plan to work for the next two years. Further, that he and his present wife have agreed that she will continue at her job and support the family, while the respondent remains at home to look after the household and the child. The parties do not want a babysitter caring for their child. It is the argument of respondent’s counsel to this court, that if respondent were a woman, he would not be expected to
It is conceded that respondent made payments of child support in 1977 and that there is a Puerto Rican divorce decree which provides for child support of $25 weekly. Petitioner mother is employed, but receives public assistance for the child.
This case presents interesting issues necessitating an examination of the evolution and interpretation of .the support obligation of parents and the impact the new equitable distribution statutes will have on these obliga-1 tians.
When the Family Court Act was enacted in, 1962, the father was primarily liable for the support of his children and the mother only secondarily liable, when death or disability of the father occurred (Family Ct Act, § 413). It was well established that support for children (and wives) was measured by the earning capacity of the father and not by his actual earnings (Hickland v Hickland, 39 NY2d 1). Thus, the courts have held that fathers/husbands were not permitted to relinquish gainful employment to become a student and start another career (Matter of Sullivan v Sullivan, 55 Misc 2d 691; Villano v Villano, 98 Misc 2d 774) or simply retire (Matter of Grant v Grant, 61 Misc 2d 968). The measure of support has been repeatedly held to be based on the father’s ability to earn (De Brauwere v De Brauwere, 203 NY 460; Kay v Kay, 37 NY2d 632; Matter of Porcelain v Porcelain, 94 Misc 2d 891; Brandt v Brandt, 36 Misc 2d 901).
In Matter of Windwer v Windwer (39 AD2d 927, affd 33 NY2d 599), the Court of Appeals held that a man’s first family has first claim on his income as opposed to his second family. Matter of Carter v Carter (58 AD2d 438) marked a turning point in the theory that the father is primarily responsible for the support of his children by imposing equal responsibility on the mother. The Appellate Division, First Department, agreed with Carter in Tessler v Siegel (59 AD2d 846), stating that equal protection demands that there be mutual parental responsibility for child support.
The fundamental characteristic of equitable distribution is its inherent flexibility. It is an attempt at enabling economic justice to become a reality. Rather than provide narrow rules, equitable distribution establishes broad guidelines, thus granting Judges wide discretion in making decisions, yet requiring the court to set forth specific factors deemed critical to their decision. Flexibility was wisely built into the statute due to the many varied fact patterns to which it must be applied. (See Foster, Equitable Distribution: An Explanation of New York’s New Statute, NYLJ, July 24, 1980, p 1, col 2.)
In view of the foregoing and based upon the current law of New York, this court finds that the earnings of respondent’s present wife ($10,300 yearly) are the property of the marriage in accordance with the principles of equitable
Accordingly, the respondent herein is ordered to pay pursuant to a temporary order, the nominal sum of $5 weekly child support until such time as a further hearing can be had to establish obligations and expenses of respondent’s present family. Such hearing is to be held on January 5, 1981.