concurring: I agree with, the majority that the payments of $75 per month made by petitioner were not deductible but do not agree that there was any designation in the decree of the New York Supreme Court, either expressed or implied, that the $75 per month payments made in the past or those to be made in the future were for child support or that such is the thrust of that decision.
The Children’s Court of the State of New York for Tioga County had no jurisdiction to modify a decree of the Superior Court of the State of California. The purpose of the Uniform Support of Dependents Law of New York, as distinguished from somewhat comparable laws of other States, is “to secure support * * * for dependent wives, children, and poor relatives from persons legally liable for their support.” Martin v. Martin, 58 Misc. 2d 459, 296 N.Y.S. 2d 453, 456 (Family Ct. 1968).1 Morse v. Morse, 153 N.Y.S. 2d 957, 959 (Sup. Ct. 1956). The jurisdiction of the Children’s Court of the New York Domestic Relations Court is limited, both in considering a claim under the New York Uniform Support of Dependents Law and a claim otherwise brought before that court to secure support for “dependents.” N.Y. Dom. Rel. Law sec. 32 (McKinney 1963), and N.Y. Family Ct. Act sec. 412 (1963) .2 Martin v. Martin, supra, and Morse v. Morse, supra, and cases there cited.
After divorce, a former wife is not a “dependent” of her former husband within the designation of dependents for whom the Children’s Court has jurisdiction to secure or grant support. Fleischer v. Fleischer, 24 App. Div. 2d 667, 261 N.Y.S. 2d 165 (Sup. Ct. 1965); and Ross v. Ross, 206 Misc. 1073, 136 N.Y.S. 2d 23 (Child. Ct. 1954). An order for support of “a wife” is always subject to the attack that the marital relationship has terminated. Travis v. Travis, 54 Misc. 2d 575, 282 N.Y.S. 2d 1001, 1003 (Family Ct. 1967). If an order for support has been entered prior to the entry of the divorce decree, the divorce nevertheless terminates the duty of the former husband to support the former ivife insofar as an order of the Children’s Court requires such support. Glass v. Glass, 57 Misc. 2d 76, 291 N.Y.S. 2d 487 (Family Ct. 1968). In that case the wife, prior to a final divorce decree, had sought support for herself and her child and the Family Court had accepted jurisdiction but had not fixed what constituted a fair and reasonable sum. After the divorce the former husband moved to dismiss the support proceeding insofar as it related to his former wife. The court granted his motion stating (p. 489) :
Nor the purpose of this decision, the Court will assume that petitioner-wife may he deemed to be the holder of an order of support. The Court finds that the termination of the marital status through a decree of divorce obtained by the wife after the entry of an order of support obtained by the wife has terminated the duty of the husband to support her under the provisions of section 412 of the Family Court Act. * * *
A former wife may bring an action in the New York Supreme Court to recover past-due payments granted to her under a decree of another State or to seek a review or modification of the decree of another State. Ross v. Ross, supra. If a former wife brings either of these actions, any support order which has been entered by the Children’s Court is not res judicata or binding on the parties in the later litigation because of the narrowly defined jurisdiction of the Children’s Court. However, under appropriate circumstances credit for payments under such a decree will be allowed. Morse v. Morse, supra at 960.
When a former wife seeks in tlie New York Supreme Oourfc to recover past-clue alimony granted to her pursuant to a divorce decree of a State such as California which will not modify a support decree retroactively to deprive a former wife of alimony already accrued, such former wife is entitled to recover the difference in the accrued alimony under the decree of the court of the other State and the amounts of support payments which have been made by her former husband. If payments are provided for alimony and child support in the divorce decree, any payments for child support made under a decree of the New York Children’s Court will be credited on the past-due amounts. Morse v. Morse, supra.
Prior to September 1965, a former wife who had been granted alimony in a decree of another State could obtain a New York order directing future payments, only by seeking a review of the decree of the other State by an action in the New York Supreme Court. Ross v. Ross, supra.
In the light of the New York law, it is my view that the decision of the New York Supreme Court entered on July 27, 1965, as set forth in the findings in the majority opinion in no way concerned or had any effect upon the nature of any payments made by the petitioner to his former wife after the date of the entry of such decision, nor did it change the nature of the payments of $75 a month made by petitioner prior to its entry. All the decision did was provide that any payments which had been made in the past for support of any of the persons for whom support was granted in the California decree should be credited in determining the amount unpaid under the California decree. The nature of the $75 a month payments made by petitioner to his former wife, both before and after the entry of the decision of the New York Supreme Court on July 27, 1965, was not affected by the decision of the New York Supreme Court.
Because of the limited jurisdiction of the Children’s Court, its decree was not a valid or enforceable direction that petitioner make payments for the support of his “wife” after the final decree of divorce of petitioner from his former wife was entered by the California Court on March 9,1962.
In Martin v. Sparks, 108 N.Y.S. 2d 259 (Dom. Rel. Ct. 1951), the court pointed out that the 1942 amendment to the Domestic Relations Court Act was for the purpose of removing “all doubt as to the Family Court’s lack of jurisdiction to entertain a new proceeding for support of a former wife or to continue in her behalf a previous Family Court support order after the date of the entry of a binding final divorce judgment.” (Emphasis supplied.)
After the entry of the final decree of divorce on March 9, 1962, the payments of $75 a month made by petitioner were for child support if they were made under the decree of the Children’s Court. The decree of the Children’s Court was valid for requiring petitioner to make child support payments during all the years here involved but it was not valid in requiring him to make payments for the support of his former wife after March 9, 1962. Unless the $75 a month payments are considered as child support payments made under the Children’s Court decree, they would either be payments under the California decree or payments made under no valid court decree. Viewed in either of these aspects, the amounts are not includable in the former wife’s income under section 71, I.R.C. 1954, and therefore not deductible by petitioner under section 215, I.R.C. 1954. If the payments are considered not to have 'been made pursuant to any decree, there is no provision for their inclusion in the wife’s income so as to make them deductible by the husband. If they are considered to be made pursuant to the California decree they are to be considered as child support payments for the reasons stated in the majority opinion.
Tietjens, Dawson, Iewin, and Steekett, JJ., agree with this concurring opinion.The court in Martin v. Martin, 58 Misc. 2d 459, 296 N.Y.S. 2d 453, 455 (Family Ct. 1968), explained the difference in the New York and California statutes as follows:
“If New York State had adopted the Uniform Reciprocal Enforcement of Support Act so that New York Law contained the same provisions with respect to whom a duty of support is owing as does California’s1 then the New York Courts would undoubtedly be required under the provisions of such reciprocal legislation to enforce the duty of support owing a former husband to his former wife imposed upon him by a foreign divorce decree (Government of Virgin Islands v. Lorillard), 3 Cir., 358 F. 2d 172).
“However, the Uniform Reciprocal Enforcement of Support Act of California and the New York Uniform Support of Dependents Law are not identical, and although substantially similar (Landes v. Landes, 1 N.Y. 2d 358, 153 N.Y.S. 2d 14, 135 N.E. 2.d 562), there is a substantial difference in respect to the persons liable for the support of dependents (Ross v. Ross, 206 Misc. 1073, 1075, 136 N.Y.S. 2d 23, 25) and in the matter of procedural detail (Santa Clara County, California v. Hughes, 43 Misc. 2d 559, 564-565, 251 N.Y.S. 2d 579. 585-586). Moreover, in resolving the legal rights and liabilities of the respective parties this Court, where there are differences, is governed by the New York, rather than the California statute (Santa Clara County, California v. Hughes, supra 565, 251 N.Y.S. 2d 586; Matter of Trent v. Loru, 57 Misc. 2d 382, 386, 292 N.Y.S. 2d 524, 527) so that if any relief is to be given, to the petitioner in this state it must be under New York rather than California Law (Ross v. Ross, supra, 206 Misc. 1076, 136 N.Y.S. 2d 26).
“The declared «purpose of the New York Uniform Support of Dependents Law is ‘to secure support in civil proceedings for dependent wives, children and poor relatives from persons legally liable for iheir support’ (Domestic Relations Law section 30). Section 32 of the Domestic Relations Law entitled ‘Persons legally liable for support of dependents’ declares that ‘For the purpose of this article, the following persons in one state are declared to be liable for the support of dependents residing or found in the same state or in another state having substantially similar or reciprocal laws * * *
“1. Husband liable for support of his wife. (Emphasis supplied)
“The liability of a husband to support his wife depends upon the existence of a valid marriage and the continuance of the relationship of husband and wife. When that relationship ceases to exist the Family Court has no power to order support on behalf of an ex-wife (Matter of Carter v. Carter, 19 A.D. 2d 513, 240 N.Y.S. 2d 141; Fishberg v. Fishberg, 16 A.D. 2d 629, 226 N.Y.S. 2d 855 ; Matter of Travis v. Travis, 54 Misc. 2d 575, 282 N.Y.S. 2d 1001; Matter of Glass v. Glass, 57 Misc. 2d 76, 291 N.Y.S. 2d 487 : ‘Davies v. ‘Davies’, 187 Misc. 313, 62 N.Y.S. 2d 790 ; Liss v. Liss, Dom. Rel. Ct., 77 N.Y.S. 2d 242; Pinto v. Pinto, Dom. Rel. Ct., 91 N.Y.S. 2d 124). Consequently the New York Uniform Support of Dependents Law which makes a ‘husband liable for support of his wife’ (Domestic Relations Law, section 32, subd. 1) has been held to exclude any liability of a divorced husband for the support of his former wife (Matter of Fleischer v. Fleischer, 24 A.D. 2d 667, 261 N.Y.S. 2d 165 ; Ross v. Ross, 206 Misc. 1073, 136 N.Y.S. 2d 23).’’
Sec. 466 of the Family Court Act, subd. (c), effective as of Sept. 1, 1965, N.Y. Laws 1965, ch. 355, conferred jurisdiction on the Family Court to enforce the order or decree of a court of competent jurisdiction not of the State of New York granting alimony. Martin v. Martin, 296 N.Y.S. 2d 453, 456 (1968). The constitutionality of this section as it applied to certain cases has apparently been questioned. See Travis 1. Travis, 54 Misc. 2d 575, 282 N.Y.S. 2d 1001, 1003 (Family Ct. 1967). However, we are not concerned with sec. 466 of the Family Court Act or whether it is constitutional under the Constitution of the State of New York since no order with which we are here concerned was entered after Sept. 1, 1965.