Spilman-Toll v. Toll

209 A.D.2d 1015, 619 N.Y.S.2d 994, 1994 N.Y. App. Div. LEXIS 12049

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 16, 1994
• Status: Published

Opinion

—Order unanimously reversed on the law without costs, objection denied, order of Hearing Examiner reinstated and matter remitted to Onondaga County Family Court for further proceedings in accordance with the following Memorandum: Family Court erred in vacating the order of the Hearing Examiner that directed respondent to pay maintenance to petitioner on the ground that it lacked jurisdiction. Family Court concluded that it lacked jurisdiction over this spousal support proceeding because the parties had entered into a separation agreement and petitioner made no showing that she was likely to become in need of public assistance or care (see, Family Ct Act § 463). That was error. The separation agreement entered into by the parties provided that upon a change of circumstances either party could commence a support proceeding in a court of competent jurisdiction. Because the matrimonial action instituted by respondent was not commenced until after this proceeding was commenced, Family Court was a court of competent jurisdiction for commencement of the support proceeding (see, Family Ct Act § 464; Matter of Wolinsky v Wolinsky, 133 AD2d 768, 769). We reinstate the order of the Hearing Examiner, and we remit the matter to Onondaga County Family Court to pass upon the remaining objections. Present —Green, J. P., Fallon, Wesley, Doerr and Boehm, JJ. [As amended by unpublished order entered Feb. 3, 1995.]