Opinion
October 25, 1994
Appeal from the Family Court, Bronx County (Stewart H. Weinstein, J.).
The Family Court's authority to order support under Family Court Act § 412 on behalf of a non-institutionalized "community spouse" is not limited by the income guidelines set forth under Social Services Law § 366-c (see, Matter of Nester v. Nester, 135 A.D.2d 878, 879-880, citing Matter of Albany County Dept. of Social Servs. v. Englehardt, 124 A.D.2d 140, lv denied 69 N.Y.2d 612; Matter of Septuagenarian v. Septuagenarian, 126 Misc.2d 699). By its terms, the statute's applicability is limited to determinations of "the eligibility for medical assistance of a person defined as an institutionalized spouse" (Social Services Law § 366-c). Further, the statute specifically provides for greater amounts to be allocated to the spouse as a "community spouse resource allowance" if "the amount transferred pursuant to court order for the support of the community spouse" exceeds the statutory formula (Social Services Law § 366-c [d] [iv]; see, Matter of Cuthbert S. v. Linda S., 161 Misc.2d 372, 379). The Legislature's enactment of the Medicare Catastrophic Care Act in 1989 was intended to implement the reasoning of the Septuagenarian (supra) line of cases that a "community spouse" should not be required to "consume the principal of her own assets until she also qualifies for public assistance" in order to obtain medical benefits on behalf of the institutionalized spouse (Matter of Albany County Dept. of Social Servs. v. Englehardt, 124 A.D.2d, supra, at 142). We find appellant's arguments to the contrary, therefore, to be without merit.
Concur — Murphy, P.J., Sullivan, Rosenberger, Nardelli and Tom, JJ.