Opinion
October 25, 1976
In a support proceeding pursuant to article 4 of the Family Court Act, the husband appeals from an order of the Family Court, Nassau County, entered April 26, 1976, which, after a hearing, directed him to pay petitioner (1) $25 per week for support and (2) $5 per week toward arrears resulting from his failure to make support payments which were ordered before he was granted a judgment of separation in the Supreme Court, Queens County, on the ground of petitioner's cruel and inhuman treatment, and in which judgment no provision for support was made. Order reversed, on the law, without costs or disbursements, and proceeding dismissed. No fact findings have been considered. Section 236 Dom. Rel. of the Domestic Relations Law specifically precludes an award of support to a wife where there had been proof of misconduct by her which would constitute grounds for a separation or divorce (see Hessen v Hessen, 33 N.Y.2d 406, 410-411; Math v Math, 39 A.D.2d 583, affd 31 N.Y.2d 693). This is so even though the wife is a recipient of public assistance or liable to become in need thereof (see Mellen v Mellen, 46 A.D.2d 790). On the question of arrears in support payments which accumulated prior to the 1975 judgment of separation in favor of the husband, we are of the view that the judgment of separation superseded and served to abate the outstanding Family Court support order and all arrears due thereunder. Latham, Acting P.J., Margett, Rabin, Titone and Hawkins, JJ., concur.