Opinion
July 5, 1961
In a proceeding under the Children's Court Act of the State of New York (§§ 30, 30-a), petitioner, the mother, appeals from an order of the Children's Court of Nassau County, dated January 18, 1961, and entered on February 7, 1961, which denied her application to direct respondent, the father, to defray the college expenses of their infant daughter Nancy, in addition to providing for her support as directed in an outstanding order of such court, dated October 31, 1959. The instant application was initiated by service of a copy of the motion papers upon the attorney who represented respondent both upon the prior applications which resulted in the outstanding support order and upon the divers appeals from such order and from other orders in this proceeding ( Matter of Matthews v. Matthews, 23 Misc.2d 320; Matter of Matthews v. Matthews, 11 A.D.2d 813). Upon this application the respondent's attorney appeared in opposition and filed an affidavit executed by respondent in Florida. The attorney disclaimed participation in the hearing conducted by the court on this application, and declared that he was not conceding the jurisdiction of the court. In such affidavit the respondent contended: (1) that the prior order had denied continuance of jurisdiction over him, and (2) that the quantum allowed for Nancy's support and maintenance in the prior order, plus other financial aids which he furnished to her, were more than sufficient to pay for her college education. In denying the application, the learned Judge stated that, since the prior order had been affirmed at the Special Term of the Supreme Court and in this court, the Children's Court had no jurisdiction over the respondent on the present application. Order reversed on the law, with $10 costs and disbursements to petitioner, and the application remitted to the Children's Court for further proceedings consistent herewith. Jurisdiction was acquired by the Children's Court when respondent appeared upon this application by counsel and submitted an affidavit with respect to the merits. A party who argues a motion on the merits, even though he contemporaneously raises the question of jurisdiction over his person, has appeared generally despite his own characterization of his participation as one of a special appearance ( Matter of Atterbury, 222 N.Y. 355, 362; 32nd St. Delicatessen v. Culinary Workers Union, 9 Misc.2d 69). Whether a college education is a necessary for Nancy in the light of respondent's pecuniary ability, and whether her present support allowance is sufficient to sustain the cost of such education, constitute questions of fact for the Children's Court to resolve in the first instance ( International Text Book Co. v. Connelly, 206 N.Y. 188, 195; 16 N.Y. Jur., Domestic Relations, § 662, pp. 213-214). Nolan, P.J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.