Caplan v. Caplan

Per Curiam.

The parties had lived in Venezuela where all four of their children were born and where the defendant was the partner in charge of the Caracas office of a New York law firm. They separated in 1970, the plaintiff wife coming to New York with the children. Three of the children are presently with the father. The wife started an action in the Supreme Court to determine the custody of the children and for her own and their support. Service was made in Venezuela. Applications were made in the Supreme Court for an order of sequestration, which were denied. That court transferred the proceedings to the Family Court.

*109That court, following ex parte hearings on November 11 and November 15, 1971, ordered respondent to pay $2,165 monthly for support of the wife and the child in her custody, and sequestered respondent’s property in the State. Respondent moved to vacate the orders on the ground that the Family Court lacked jurisdiction to make them. The appeal is from the order denying the motion.

Jurisdiction of the Family Court in support proceedings is provided for in section 421 of the Family Court Act. Though the section is labeled “Venue”, it derives from section 31-b of the Children’s Court Act and section 103 of the Domestic Relations Court Act. And while the 'Section deals with venue, it also is the only section which defines the persons who may bring, and those who are obliged to respond to, petitions for support. There are five subdivisions which specify such persons. The respondent here comes within none of the categories specified.

It is claimed, however, that section 429 of the act enlarges the jurisdiction of the court. It empowers the court to issue a writ of seizure in certain instances. Such power is naturally limited to instances where the court would otherwise have jurisdiction as nothing in the section indicates that it thereby extends the court’s jurisdiction. Moreover, a close reading of section 429 shows that it does not apply to the factual situation here presented. The section intends to cover the case where the husband, being within the territorial jurisdiction of the court, abandons his wife and leaves the jurisdiction. Here, any possible abandonment did not take place within the jurisdiction, nor did the respondent leave it. At no material time was he here. The fact is that after the alleged abandonment the petitioner came here — a situation not provided for in the section at all.

Order of the Family Court entered December 15, 1971 (Midonick, J.) should be reversed on the law and motion granted vacating orders dated November 11, 1971, and November 15, 1971, without costs.