112 Misc. 208 | N.Y. Sup. Ct. | 1920
Application to punish a husband for contempt in failing to obey that part of an order made under section 70 of the Domestic Eolations Law, which required the payment by the father to the mother of a certain sum of money for the support and maintenance of a child of the parties. At the time of the granting of the original order which has been several times amended, the parties lived separate and apart. One of the answers of the husband to the motion is that the court had no jurisdiction in this proceeding to make an order providing for the payment by him of a sum of money for the maintenance and support of his child, even though the father consented to the order. Every justice who has presided at ex parte either knows or has made use of the practice of providing for the support of an infant, where in a proceeding brought under this section the award of the custody has been made to the mother. The practice seems to have given satisfaction. As far as I have been able to ascertain, no such order has ever been attacked for want of power.
In my opinion this enactment does not confer upon the court the power to make a money award, even if it be assumed the legislature has the right to confer such a power upon the courts. It will be observed that the charge and custody of the child are awarded to' a parent under such regulations and restrictions and
I conclude, therefore, that there is no inherent power in the court to make any such money provision. The only legal method to compel a father to support his child will be found in the Inferior Criminal Courts Act and indirectly by action against the father for necessaries furnished to the child. Since, therefore, the statute does not confer the power and the court has not the inherent power to make an award of money my conclusion is that that part of the order was made without jurisdiction. Such jurisdiction could not be conferred by consent of the parties. The motion must be denied. No costs.
Motion denied, no costs.