Conrad v. Lewis

93 A.D.2d 974, 461 N.Y.S.2d 615, 1983 N.Y. App. Div. LEXIS 17879

Opinion

— Order unanimously affirmed, without costs. Memorandum: The parties were divorced in March of 1982. The judgment of divorce provides that the separation agreement survives the divorce decree, but the judgment fails to incorporate the terms of the separation agreement. Therefore, there is no order with respect to child custody or support. Petitioner brought this petition in Family Court styled as a petition to enforce an order of support. Family Court had before it, however, no support order to enforce. Nevertheless, Family Court has authority to make an order for support “[i]n the absence of” an order of another court (Family Ct Act, § 461, subd [a]). The CPLR (applicable to all civil proceedings in New York, see CPLR 101) permits the court to convert the proceeding to the one that should have been brought (CPLR 103, subd [c]). Therefore, we treat the instant petition as one to obtain support in the absence of any order. We see no abuse of discretion in Family Court’s determination of the amount of support. (Appeal from order of Yates County Family Court, Dugan, J. — child support.) Present — Dillon, P. J., Doerr, Boomer, Moule and Schnepp, JJ.