Matter of Nicole K. v Norwood K.

[*1] Matter of Nicole K. v Norwood K. 2013 NY Slip Op 52106(U) Decided on December 13, 2013 Family Court, Queens County Hunt, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 13, 2013
Family Court, Queens County

In the Matter of a Proceeding for Support under article 4 of the Family Court Act Nicole K., Petitioner,

against

Norwood K., Respondent.



F-3534-13/13A

John M. Hunt, J.

Respondent, Norwood K., has filed objections to an order entered by the Support

Magistrate on September 27, 2013. That order dismissed without a hearing, respondent's petition

seeking modification of an order of support issued by the Family Court, Queens County (same

date, same Support Magistrate) which directs that respondent pay child support in the amount of

$107.00 per week for the parties' three children.

Respondent contends in his objections that the Support Magistrate's dismissal of his

petition for modification of his child support obligation was erroneous.

Upon review of the record of the proceedings, the Court finds that the respondent's

supplemental petition was properly dismissed by the Support Magistrate.

The parties were married in Hawaii June 19, 1998 and they have three children: Kimani

(born July 4, 1994), Norwood (born March 15, 2004), and Keri (born May 13, 2009). Sometime [*2]

on or before January 9, 2013 the father, Norwood K. commenced a matrimonial action against

Nicole K. in the Supreme Court, Queens County under Index Number 23227/2012. A request for judicial intervention (22 NYCRR §§202.6; 202.16 [d]) and a note of issue (22 NYCRR §202.21

[a]) were filed in the matrimonial action on January 9, 2013, and the case was placed on the

uncontested matrimonial calendar of the Court Attorney-Referee for further proceedings. The

parties appeared before the Court Attorney-Referee in Supreme Court on January 16, 2013 and

proceedings were apparently concluded. On May 21, 2013, the Court Attorney-Referee signed a

judgment of divorce which provides, insofar as relevant, that plaintiff (husband) shall pay child

support in the amount of $107.00 per week "pursuant to an existing order issued by the Family

[Court], Queens County, under Docket Number F-03534-13, the terms of which are hereby

continued."[FN1]

Proceedings in the Family Court commenced on February 20, 2013 when Nicole K.

filed a petition pursuant to Family Court Act §423 seeking to compel Mr. K. to provide support

for the parties' three children. Subsequently, Mr. K. filed his supplemental petition for

modification of his child support obligation with the Family Court on May 7, 2013. Clearly,

both petitions were filed with the Family Court after the matrimonial action had commenced and

prior to the issuance of a judgment of divorce by the Supreme Court.[FN2]

While the Family Court is vested with exclusive original jurisdiction to adjudicate

proceedings for the support of a spouse or a child (NY Const, art. VI, §13 [b]; Fam. Ct. Act [*3]

§§115 [a] [ii]; 411; Kagen v. Kagen, 21 NY2d 532, 537 [1968]), any grant of original jurisdiction

of the Family Court is "theoretically subject to the inherent, general jurisdiction of the Supreme

Court" (Sobie, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Court

Act §1013 at 172 [West 2010]; see, Matter of Paul B.S. v. Pamela J.S., 70 NY2d 739, 741

[1987]; Kosovsky v. Zahl, 52 AD3d 305 [2008]; Matter of Daniel D., 57 AD3d 444 [2008], lv

dismissed 12 NY3d 906 [2009]).

Exclusive jurisdiction over matrimonial actions is vested with the Supreme Court (NY

Const, art VI, §7; Seitz v. Drogheo, 21 NY2d 181, 211 [1967]; see also, Sohn v. Calderon, 78

NY2d 755, 766 [1991]). In contrast, the Family Court is a court of limited jurisdiction that is

"constrained to exercise only those powers granted to it by the State Constitution or by statute"

(Matter of H.M. v. E.T., 14 NY3d 521, 526 [2010]; see also, Kleila v. Kleila, 50 NY2d 277, 282

[1980]; Matter of Johna M.S. v. Russell E.S., 10 NY3d 364, 366 [2008]; King v. State Education

Department, 182 F3d 162, 163 [1999]; Matter of Chemung County Dep't. of Social Services

[Cheatham] v. Crane, ___ AD3d ___, 973 NYS2d 825, 827 [2013]), and with an exception

relating to public assistance which is not applicable here, Family Court's original jurisdiction

does not extend to proceedings for child or spousal support while an action for divorce is pending

(NY Const, art. VI, §13 [b] [4]; Matter of Roy v. Roy, 109 AD2d 150, 152 [1985]; Wolinsky v.

Wolinsky, 133 AD2d 768 [1987]; Ramirez v. Ramirez, 171 AD2d 784, 785 [1991]; Matter of

Rubenstein v. Yosef, 198 AD2d 359, 360 [1993]; Matter of Childers v. Childers, 260 AD2d 767,

768 [1999]).[FN3] [*4]

While the parties may have believed it to be more convenient or expeditious to have the

issue of child support determined by the Family Court Support Magistrate, this involves more

than the conservation of scarce judicial resources or reducing possible inconvenience to litigants.

While those issues are deserving of substantial consideration, this involves the subject matter

jurisdiction of a court which is "a question of judicial power: whether the court has the power,

conferred by the Constitution or statute, to entertain the case before it" (Fry v. Village of

Tarrytown, 89 NY2d 714, 718 [1997]; see also, Thrasher v. United States Liability Ins. Co, 19

NY2d 159, 166 [1967]; Lacks v. Lacks, 41 NY2d 71, 75 [1976]; Ballard v. HSBC Bank USA, 6

NY3d 658, 663 [2006]; Manhattan Telecommunications Corp. v. H & A Locksmith, Inc., 21

NY3d 200, 203 [2013]).

Subject matter jurisdiction is "fundamental to the power of adjudication of a court"

(Lacks, 41 NY2d at 74; see also, Gonzalez v. Thaler, ___ US ___, 132 S. Ct. 641, 648 [2012]),

and litigants may not by agreement confer subject matter jurisdiction upon a court which is not

competent to adjudicate a case (Cuomo v. Long Island Lighting Co., 71 NY2d 349, 351 [1988];

County of Monroe v. City of Rochester, 39 AD3d 1272, 1273 [2007]; Burke v. Aspland, 56 AD3d

1001, 1003-1004 [2008], lv denied 12 NY3d 709 [2009]; Hart Family, LLC v. Town of Lake

George, 110 AD3d 1278, 1280 [2013]).

Here, once the husband filed the matrimonial action in the Supreme Court, the issue

of child support was no longer within the exclusive original jurisdiction of the Family Court, and

there was no authority for the Support Magistrate to enter any child support order upon the [*5]

petition which had been filed by the mother. While the issue of jurisdiction was apparently raised

while the case was before the Support Magistrate, the final outcome was the issuance of a

purported final "order of support" by the Magistrate on September 27, 2013 which contained

additional terms not contained in the May 21, 2013 judgment of divorce.[FN4]

"[A] court's lack of subject matter jurisdiction is not waivable, but may be raised at any

stage of the action, and the court may, ex meru moto [on its own motion], at any time, when its

attention is called to the facts, refuse to proceed further and dismiss the action" (Financial

Industry Regulatory Authority, Inc. v. Fiero, 10 NY3d 12, 17 [2008] [citation omitted]; see also,

Gonzalez, ___ US at ___, 132 S. Ct. at 648; Fry, 89 NY2d at 718; People v. Hanley, 20 NY3d

601, 604 [2013]; People v. Lawrence, 80 AD3d 1011, 1012 [2011]; Matter of Jose M. v. Angel

V., 99 AD3d 243, 246 [2012]; Matter of Scott KK. v. Patricia LL., 110 AD3d 1260, 1261-1262

[2013]).

Here, it is indisputable that the mother's initial support petition and the father's

supplemental petition for modification were both filed after the commencement and during the

pendency of the parties' matrimonial action. Accordingly, as any support order issued by the

Support Magistrate in this proceeding was void ab initio (see, Matter of Fish v. Horn, 14 NY2d

905, 906 [1964]; Johnson v. Shelton, 12 AD3d 203, 204 [2004]; Matter of Robert B.-H., 82

AD3d 1221,1222 [2011], lv dismissed 17 NY3d 770 [2011]; Matter of Parrella v. Freely, 90

AD3d 664, 665 [2011]), there can be no objections filed as to the order pursuant to Family Court [*6]

Act §439 (e). For the same reason, the Family Court also lacked jurisdiction to entertain a

supplemental petition for modification of the order of support issued by the Support Magistrate.

Under the circumstances here, it would be inappropriate for this Court to take further

action upon these petitions. Any unresolved legal issues, such as the incorporation of a Family

Court order of support issued in the absence of subject matter jurisdiction in the judgment of

divorce, must be addressed before the Supreme Court.

It is therefore,

ORDERED, that respondent's objections to the order dated September 27, 2013 which

dismissed his supplemental petition under Docket Number F-03534-13/13A, are denied.

This constitutes the decision and order of the Court.

E N T E R:

_________________________________

JOHN M. HUNT

Judge of the Family Court

Dated: Jamaica, New York

December 13, 2013

Footnotes

Footnote 1:This case does not involve Supreme Court's authority to continue a valid pre-existing child support order issued by the Family Court in a judgment of divorce (Fam. Ct. Act §462).

Footnote 2:It appears that the judgment of divorce signed by the Supreme Court on May 21, 2013 incorporated and continued what was a temporary order of support entered by the Support Magistrate.

Footnote 3:A similar restraint exists with respect to the Family Court's jurisdiction over custody and

visitation proceedings filed after the commencement of a matrimonial action (Matter of Poliandro v. Poliandro, 119 AD2d 577, 578-579 [1986], app dismissed 68 NY2d 908 [1986]; Matter of O'Neil v. O'Neil, 193 AD2d 16, 19 [1993]; Rubenstein, 198 AD2d at 360; Matter of Christine C. v. Angelo C., 211 AD2d 786, 787 [1995]; Matter of Moloney v. Moloney, 19 AD3d 496, 497 [2005]).

Footnote 4:In addition to ordering child support of $107.00 per week, the "order of support" issued on September 27, 2013 awards retroactive child support and makes provisions for health

insurance coverage for the children and for the payment of their future unreimbursed health care expenses.