It is one thing to withhold custody from the person clearly entitled to it, thereby disregarding the best interests of the child, for the purpose of forcing repayment to a stranger of expenses already incurred. It is quite another thing to award custody to a mother in accordance with the best interests of a child and then for the same reason to require a negligent father to contribute future support. Three New York cases are cited in support of the proposition that the court in habeas corpus is without power to provide for support of the infant: People ex rel. Prior v. Prior, 182 N YS. 577 (1920); People ex rel. Klee v. Klee, 202 App. Div. 592, 195 N.Y.S. 778 (1922); and Bedrick v. Bedrick, 270 N.Y.S. 566, affirmed without opinion in 241 App. Div. 807, 271 N.Y.S. 949 (1933). The New York decisions appear to be in conflict.
Such a court, it is urged, should not be powerless to accomplish adjustments necessary to the proper upbringing and education of the children of a disrupted home. 'The authorities, however, are the other way. Though not numerous, they are substantially in agreement (Matter of Ryder, 11 Paige Ch. 185; Matter of Bedrick v. Bedrick, 151 Misc. 4, affd. 241 A.D. 807; cf. Schacht v. Schacht, 58 N.Y. S.2d 54; Application of MacAlpine, 50 N.Y. S.2d 232, affd. sub. nom. People ex rel. MacAlpine v. MacAlpine, 267 A.D. 952; People ex rel. Prior v. Prior, 112 Misc. 208; Alling v. Alling, 52 N. J. Eq. 92; Huke v. Huke, 44 Mo.App. 308; but cf. Cowls v. Cowls, 8 Ill. 435). The Domestic Relations Court undoubtedly has power to require payment in excess of the amount which a foreign decree of divorce has fixed for the support of the children (Scrima v. Scrima, 265 A.D. 483). But this power is given by express statutory provisions which have no application to the Supreme Court.
(See N. Y. L. J., Sept. 19, 1949, p. 520, col. 1, and March, 1950, Virginia Law Weekly articles.) Even the matrimonial jurisdiction of the Supreme Court of the State of New York is wholly statutory (Erkenbrach v. Erkenbrach, 96 N.Y. 456; Caldwell v. Caldwell, 298 N.Y. 146); it has power to order support solely as an incident to a matrimonial action (Johnson v. Johnson, 206 N.Y. 561) and is without jurisdiction to entertain an independent petition for support (Matter of Bedrick v. Bedrick, 151 Misc. 4, affd. 241 App. Div. 807; Langerman v. Langerman, 303 N.Y. 465). Also, it is even doubtful whether the Supreme Court has power to order support in a habeas corpus child custody proceeding (Matter of MacAlpine, 50 N. Y. S. 2d 232, and cases therein cited, affd. sub nom.People ex rel. MacAlpine v. MacAlpine, 267 App. Div. 952; People ex rel. Geismar v. Geismar, 184 Misc. 897, 911; but see Matter of Sandfort v. Sandfort, 278 App. Div. 331).
(See N.Y.L.J., Sept. 19, 1949, p. 520, col. 1, and March, 1950, Virginia Law Weekly articles.) Even the matrimonial jurisdiction of the Supreme Court of the State of New York is wholly statutory ( Erkenbrach v. Erkenbrach, 96 N.Y. 456; Caldwell v. Caldwell, 298 N.Y. 146); it has power to order support solely as an incident to a matrimonial action ( Johnson v. Johnson, 206 N.Y. 561) and is without jurisdiction to entertain an independent petition for support ( Matter of Bedrick v. Bedrick, 151 Misc. 4, affd. 241 A.D. 807; Langerman v. Langerman, 303 N.Y. 465). Also, it is even doubtful whether the Supreme Court has power to order support in a habeas corpus child custody proceeding ( Matter of MacAlpine, 50 N.Y.S.2d 232, and cases therein cited, affd. sub nom. People ex rel. MacAlpine v. MacAlpine, 267 A.D. 952; People ex rel. Geismar v. Geismar, 184 Misc. 897, 911; but see Matter of Sandfort v. Sandfort, 278 A.D. 331).
Apart from the doubt whether those decisions have been impliedly overruled by Johnson v. Muelberger ( 340 U.S. 581), they are in any event distinguishable because they turn wholly on the Full Faith and Credit Clause of the United States Constitution and do not touch at all the totally different instant question of the relation between the matrimonial jurisdiction of the Supreme Court of the State of New York and the summary support jurisdiction of the Domestic Relations Court of the City of New York. For the Supreme Court of the State of New York, being empowered to order support only as an incident to an action for divorce, separation or annulment ( Matter of Bedrick v. Bedrick, 151 Misc. 4, affd. 241 A.D. 807; Moen v. Thompson, 186 Misc. 647, and cases cited supra) has no jurisdiction to order support of a child of parents divorced in another State (see Helman v. Helman, 190 Misc. 991). Accordingly the petition must be and hereby is dismissed for lack of subject-matter jurisdiction.
Apart from the doubt whether those decisions have been impliedly overruled by Johnson v. Muelberger (340 U. S. 581), they are in any event distinguishable because they turn wholly on the Full Faith and Credit Clause of the United States Constitution and do not touch at all the totally different instant question of the relation between the matrimonial jurisdiction of the Supreme Court of the State of New York and the summary support jurisdiction of the Domestic Relations Court of the City of New York. For the Supreme Court of the State of New York, being empowered to order support only as an incident to an action for divorce, separation or annulment (Matter of Bedrick v. Bedrick, 151 Misc. 4, affd. 241 App. Div. 807; Moen v. Thompson, 186 Misc. 647, and cases cited supra) has no jurisdiction to order support of a child of parents divorced in another State (see Helman v. Helman, 190 Misc. 991). Accordingly the petition must be and hereby is dismissed for lack of subject-matter jurisdiction.
The matrimonial jurisdiction of the Supreme Court is wholly statutory ( Erkenbrach v. Erkenbrach, 96 N.Y. 456; Johnson v. Johnson, 206 N.Y. 561; Caldwell v. Caldwell, 298 N.Y. 146, 152). It has power to order support solely as an incident to an action for divorce, separation or annulment, ( Matter of Bedrick v. Bedrick, 151 Misc. 4, affd. 241 A.D. 807; see, also, Moen v. Thompson, 186 Misc. 647; Snyder v. Snyder, 72 N.Y.S.2d 881, 883; "Mooney" v. "Mooney", 187 Misc. 789; Helman v. Helman, 190 Misc. 991; "Kaplan" v. "Kaplan", 197 Misc. 687 [LORENCE, J.], and "Fitzgerald" v. "Fitzgerald", 65 N.Y.S.2d 285, 286 [DELANY, J.]); even in a habeas corpus child custody proceeding the Supreme Court lacks power to order support.
After personal research and communicating with the Supreme Court Justice who tried the annulment action I have concluded that under the particular circumstances the Family Court still has jurisdiction, and should continue to exercise it. That conclusion rests upon the following grounds: (1) The May 16, 1950, judgment is effectual only as an adjudication that the parties are still husband and wife; the provision therein for payment of $22.50 per week for the support of the wife is void for lack of subject-matter jurisdiction. The matrimonial jurisdiction of the Supreme Court is wholly statutory (Erkenbrach v. Erkenbrach, 96 N.Y. 456; Johnson v. Johnson, 206 N.Y. 561; Caldwell v. Caldwell, 298 N.Y. 146, 152). It has power to order support solely as an incident to an action for divorce, separation or annulment, (Matter of Bedrick v. Bedrick, 151 Misc. 4, affd. 241 App. Div. 807; see, also, Moen v. Thompson, 186 Misc. 647; Snyder v. Snyder, 72 N. Y. S. 2d 881, 883; "Mooney" v. "Mooney", 187 Misc. 789; Helman v. Helman, 190 Misc. 991; "Kaplan" v. "Kaplan", 197 Misc. 687 [LORENCE, J.], and "Fitzgerald" v. "Fitzgerald", 65 N. Y. S. 2d 285, 286 [DELANY, J.]); even in a habeas corpus child custody proceeding the Supreme Court lacks power to order support.
All of the other cases cited by petitioner are readily distinguishable in that they involve custody, and not support and maintenance. The case of Matter of Bedrick v. Bedrick (151 Misc. 4, affd. 241 App. Div. 807) seems to me to be controlling. It holds that such an application as this cannot be maintained as a special, separate, independent proceeding in the absence of express statutory power conferring such jurisdiction upon this court to entertain such an application.
All of the other cases cited by petitioner are readily distinguishable in that they involve custody, and not support and maintenance. The case of Matter of Bedrick v. Bedrick ( 151 Misc. 4, affd. 241 A.D. 807) seems to me to be controlling. It holds that such an application as this cannot be maintained as a special, separate, independent proceeding in the absence of express statutory power conferring such jurisdiction upon this court to entertain such an application.