Opinion
December 6, 1943.
Proceeding by Franceses Amato against Guiseppe Arnato for support of wife and children.
Order in accordance with opinion.
Solon B. Hanit, of Brooklyn, for petitioner.
Ingoglia Ingoglia, of Brooklyn, for respondent
The parties were married on January 9th, 1915.
Petitioner has borne eight children, ranging in age from twenty-live years to one year, only four of whom, however, are still under the age of seventeen years and therefore included in the petition (Geraldine, born October 27, 1926, Barbara, born April 15, 1931, Salvatore, born June 21, 1941, Vincent, born November 19, 1942).
Respondent has removed from the household after growing marital friction culminating-in his questioning the paternity of the youngest' two children and in a fight with the alleged paramour which resulted in mutual charges of felonious assault.
Respondent is a clothing union piece-work operator, and during-the past four years he has been employed in the establishment of an individual proprietor who is friendly towards him. His net wages from July 3, 1942, to July 23, 1943, averaged $31.32 a week; and that figure fairly represents respondent's earning capacity, altho his recent income has been somewhat lower, doubtless under the strain of the criminal prosecution, now, however, ended in the Grand Jury's refusal to indict him.
At a September 14, 1943, hearing it was expressly conceded that all four of the above-named children are the issue of both parties for all purposes of support orders of this Court. For, counsel realistically recognized the sisyphean burden of overcoming the strong presumption of legitimacy of every child born of a wife during marriage (Stillman v. Stillman, 240 N.Y. 268, 272, 148 N.E. 518; cf. Matter of Findlay, 253 N.Y. 1, 170 N.E. 471), in the face of the parties' residence under the same roof until after the birth of the youngest child and the "Lord Mansfield Rule", still operative in New York except in paternity proceedings, that "neither husband nor wife are competent to prove nonaccess during wedlock, whatever may be the form of legal proceedings, or whoever may be the parties thereto." Commissioner of Public Weifare of City of New York, on Complaint of Vincent v. Koehler, 284 N.Y. 260, at page 265, 30 N.E.2d 587, at page 590. Cf. Admire v. Admire, 180 Misc. 68, 42 N.Y.S.2d 755, and Haynes v. Haynes, Sup., 43 N.Y.S.2d 315.
However, such concession is deemed limited to this Court's support orders, which do not constitute adjudications of legitimacy status binding-on the children or persons claiming through or under them (Matter of Melis v. Department of Health of City of New York. 260 App.Div. 772, 24 N.Y.S.2d 51) nor on the spouses in any Supreme Court matrimonial litigation. See Loomis v. Loomis. 288 N.Y. 222, 42 N.E.2d 495.
At that September 14, 1943. hearing it was determined also that petitioner and those four children are entitled to support under Domestic Relations Court Act, § 92(1), which confers upon the Family Court Division of this Court the power to "order support of a wife or a child or both, irrespective of whether either is likely to become a public charge, as justice requires having due regard to the circumstances of the respective parties."
The sole remaining-question is the amount respondent may be ordered at this time to contribute pursuant to that statutory provision and correlative Domestic Relations Court Act, § 92(3) and 5 101, sulxl. 1.
And that question must be resolved in the light of the commonsense principle that "it is quite conceivable that an order may be made for the support of dependents which is not adequate because of the inability of the person chargeable to meet an adequate order. The ability of the respondent, as well as the need of a dependent, may govern the amount of the order." Domb v. Domb, 170 Misc. 409, 410, 411, 27 N.Y.S.2d 601, 603.
Obviously, it is not within the power of any court to apportion respondent's modest earnings in such manner as fully to satisfy the needs of either party. There exists no magic process for transmutation of income meager for a united group into adequacy of separate maintenance of a divided family. One of the baleful consequences of failure of a marital venture is usually additional economic strain for each spouse and the children.
In the case at bar the support problem is further complicated by respondent's debts, recently incurred in successful defense of the criminal prosecution.
For that purpose his employer advanced $250 upon an informal understanding that he would be reimbursed $7 each week. And to meet additional legal expenses, when counsel first retained entered the war service, respondent borrowed from his Union the further sum of $200, repayable at $4 a week.
[4, 5] A respondent's debts constitute one of the "circumstances of the respective parties" (Domestic Relations Court Act, § 92(1); and, here, some weight must be accorded to their existence and origin and this particular respondent's demonstrated purpose gradually to clear them His debts differ in nature from the too familiar type of improvident installment buying or finance company obligations which are often significant symptoms or even contributing causes of the separation and usually merit negligible weight in the computation of the support order. However, manifestly, today's order cannot be predicated on a priority allowance of $11 a week for liquidation of debts, out of a net salary of little more than twice that amount. Such disposition would be contrary to the well-defined public policy, expressed in kindred legislation, that the rights of the creditor are limited by the reasonable needs of a wage-earner debtor and his dependents.
Civil Practice Act, § 684, provides for a judgment creditor levy upon the earnings, or other income, of a judgment debtor not exceeding 10% (.hereof, and, also, for satisfaction of only one such 10% levy at one time. And, although that restrictive provision has been supplemented by Civil Practice Act, § 793, enacted to cover situations where a levy under Civil Practice Act, § 684, is unavailable (e.g., a Federal government employee judgment debtor, Reeves v. Crownshield, 274 N.Y. 74. 8 N.E.2d 283, 111 A.L.R. 389) or a 10% garnishment would be unfairly small in proportion to the judgment debtor's surplus income (see Wells v. Hollister, Sup., 43 N.Y.S.2d 298), nevertheless, the amount of any order under Civil Practice Act, § 793, is discretionary (see Dotlea Realty Corporation v. Abrams, 175 Misc. 591, 592, 24 N.Y. S.2d 252) and is to be fixed only "after due regard for the reasonable requirements of the judgment debtor and his family, if dependent upon him". Civil Practice Act, § 793. "It would certainly be contrary to the policy of the State to deprive a man for the benefit of a creditor of income at least sufficient to meet the reasonable requirements for the support and maintenance of himself and of his dependents." McDonnell v. McDonnell, 281 N.Y. 480, 24 N.E.2d 134, 135. "At bar we have a worker employed by the Works Progress Administration earning $22 weekly and with a wife and two small children — I do not see how he can spare, anything from that." Evans, J., Dotlea Realty Corporation v. Abrams. supra, 175 Misc. at page 592, 24 N.Y.S.2d at page 253.
Such reasoning is especially pertinent where the debtor's family must depend, wholly or partly, on governmental assistance. In that situation any collection by the creditor in effect comes out of the public purse. "It grates upon the conscience to believe that section 792 can be so administered that moneys appropriated by the federal government, for the purpose of relieving economic suffering, and which must be eventually returned by taxing all, can be applied thus indirectly for the benefit of a judgment creditor." Evans, J., Dibner v. Cousminer, 157 Misc. 229, 230, 283 N.Y.S. 369, 371.
Another expression of legislative solicitude for the allocation of wages to the current maintenance of the wage-earner and his dependents is the restriction imposed against an assignment of more than 10% of compensation for services as security for indebtedness under $1000. Personal Property Law, § 46.
Still further evidences of such legislative purpose are the directions for weekly payments of wages in cash (Labor Law, § 196) and the pro-