Caplan v. Caplan

Kupferman, J. (dissenting).

We would affirm on the question of jurisdiction, and, because that is the only question before us, we do not consider the merits with respect to the amount of support or its justification.

To add to the facts in the Per Curiam, the parties were married in New York, and the respondent.is a member of the New York Bar. After the marriage, they moved to Caracas, Venezuela, where four children were born. The respondent represented his New York law firm in Caracas, and it is his *110interest in the New York law firm, which is attempted here to be sequestered.

. When they separated in June, 1970, the wife seems to have been with the children in a rented summer house in Port Washington, Long Island, following a previous course of conduct with respect to summer vacations. The wife and one child resided in Manhattan at the time of the Family Court hearing.

The wife commenced her action in the Supreme Court where the respondent appeared by counsel to contest jurisdiction after personal service of the petition, order to show cause, etc. in Caracas, Venezuela, and the Supreme Court of its own motion ‘ ‘ transferred and referred ’ ’ the proceedings to the Family Court to apply its expertise. Under the circumstances, it is Supreme Court jurisdiction or Family Court jurisdiction that applies, whichever might be greater. (Kagen v. Kagen, 21 N Y 2d 532; Matter of Seitz v. Drogheo, 21 N Y 2d 181.)

The wife’s rights aside (see Note, Valuation of the Right to Support for Purposes of the Federal Tax System, 72 Col. L. Rev. 132, Jan., 1972), the court clearly had the power to provide for support of the children even if the respondent has obtained in any state or country a final decree of divorce or separation from his wife ”. (Domestic Relations Law, § 33, subd. 4; see, also, Domestic Relations Law, § 240.)

There is no doubt that the respondent had notice, by virtue of service in person in Caracas, of the proceeding, which was transferred to the Family Court, and that, as his counsel informed the court, he had made a calculated decision to rest his case on jurisdictional grounds. Further, there is no attempt to enforce an in personam judgment, but to fix support and direct payment out of sequestered property. (Vanderbilt v. Vanderbilt, 1 N Y 2d 342.)

In Geary v. Geary (272 N. Y. 390, 402-403) it was said that: “ The New York statute in terms permits the making of a sequestration order in a pending action. The Constitution of the State of New York and the Constitution of the United States are not violated by such provision so long as under the New York statute seizure must precede inquiry or adjudication as to the award of alimony, or the application of property of the defendant to payment of such award so that the defendant may have opportunity to be heard upon that inquiry. The defendant has had such opportunity here.” (Emphasis supplied.)

Nunez, J. P., McNally and Steueb, JJ., concur in Per Curiam opinion; Kupeebman, J., dissents in an opinion in which Capozzoli, J., concurs.

*111Order, Family Court of the State of New York, New York County, entered on December 15, 1971, reversed, on the law, without costs and without disbursements, the motion granted vacating orders of said court entered on November 11 and 15, 1971, and the petition dismissed.