Lo Casto v. Lo Casto

45 A.D.2d 712, 355 N.Y.S.2d 812, 1974 N.Y. App. Div. LEXIS 4831

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 3, 1974
• Status: Published

Opinion

In a support proceeding, the appeal is from an order of the Family Court, Richmond County, dated October 9, 1973, which, upon a decision inter alia denying appellant’s motion to dismiss the petition on the ground that said court no longer had jurisdiction, directed (1) the continuance of a prior order granting petitioner support of $40 per week and (2) appellant to pay $5 additional per week on arrears of $2,340. Order reversed,' on the law, without costs, and motion to dismiss the petition granted. Where, as here, an action for divorce was commenced in the Supreme Court, the jurisdiction of the Family Court cannot thereafter be invoked to award support, unless the Supreme Court either referred the matter of support to the Family Court or petitioner is likely to become a public charge (Family Ct. Act, § 464; Matter of Costa v. Costa, 247 App. Div. 192, 193; “ Messina ” v. “ Messina ”, 199 Misc. 695, 696). It is undisputed that the Supreme Court did not transfer the issue of support to the Family Court and the record fails to reveal facts sufficient to indicate that petitioner is likely to become a public charge. Accordingly, the award of support is invalid, as the Family Court did not properly acquire jurisdiction. In any event, the parties were no longer husband and wife on and after June 8,1973, when a judgment of divorce was entered in the Supreme Court and so even if the Family Court had jurisdiction theretofore, such jurisdiction would then have terminated. Hopkins, Acting P; J., Martuscello, Shapiro, Christ and Brennan, JJ., concur.