Petition — Matsis v. Matsis

lupreme Court, U LP

FIL

APR 26 1980

MICHAEL RODAK, JR., CLERR

IN THE

SUPREME COURT OF THE UNITED STATES

No.

29-1698

Aristides Matsis, Appellant,

vs.

Rose Matsis, Appellee,

CERTIORARI FROM THE COURT OF APPEALS

OF THE STATE CF NEW YORK

PETITION FOR A WRIT OF CERTIORARI

Appellant pro se

By: 2860 Broadway

New York New York

10025

TABLE OF CONTENTS

OPINIONS DT 6c kk Ob eee © 0c Oo ee

STATEMENT OF JURISDICTION.......

STATUTORY PROVISIONS

CONFERRING JURISDICTION.........

QUESTIONS PRESENTED... cccccves

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED...

STATEMENT OF THE CASE... cccccee

FEDERAL QUESTIONS

RAISED FR re ie ee

ARGUMENTS IN SUPPORT

OF PETITION eeeevseevev eevee eeeeveee8@

CONCLUSION eeeeevv eevee eeeaeeeeeene8 ©

Appendix A-Order of the Family

Court April 18,1979..

Appendix B-Order of the Family

Court May 28,1979..e.6

Appendix C-Order of the Family

Court May 28,1979....

Appendix D-Order on Appeal to

Appellate Division

of New York Supreme

COUTTS cb seb OeeC ORO KC

Appendix E-Order of the Court

of Appeals dismiss-

ing motion for leave

to APPCAl.cccccccsccce

35

37

Page

Appendix F-Decision of Family Court

Pa

Super Tire v.McCorkle,416 U.S.115.. 5

April 18,1979 weccccceee 38

Tate v.Short,401 Meme tetiehictsese a (28

Turner v. Fouche, 396 UvavIeCs vocsecs: 21

U.S.C.Regents v.Bakke,57 L.Ed2d 774 17

Webster, 430 bite ek ek ois kon ces 21

Weisenfeld,420 U.S.636......cccce., 21

Williams v.Illinois, 399 Viteepoedns 23

£ppendix G=-Decision of Family Court

May 28,1979 @eeeeeeaeveae0ee 41

Appendix H-Decision of Family Court

May 28,1979 ereeeeeeeees 43

TABLE OF AUTHORITIES

INDEX TO CITATIONS

Constitution of the U.S.Jayson, 1972,

Cases: | page 1474 eeoeoeeeeeeoeeoeeeeoneeeesneeeees 26

; Divorce, Child Custody and Child

Bailey v.Alabama,219 U.S.219....e.. 16 Support,Bureau of Census,1979,series |

Caban v.Mohammed,99 S.Ct.1760...... 30 F725 yNO.84, Page 3 seecseesseceeee 12527

Califano v.Webster,430 U.S.313,317.19,20 | Stastical Abstract, 100th.ed.1979

Childs v.Childs,99 ee ise TOC: we ewe 31 table 80 eeoereeeeeeeeeseeeeeeeeeeee 29

Carrington v.Rash,380 U.S.96.....2. 24

Carey v.Population Ser.,97 S.Ct.2010,23

Fuentes v.Shevin,407 U.S.80,81..... 16

AG SO) GOULEL GOT Ustle'l. Svs cndesecsee..'25

Glona v.American Gu.,391 U.S.73...- 14

Griswold v.Conn.381 U.S.488,491,492 20

Goldfarb, 430 iis SOS oe eke ie kee Oo 0 21

Gomez v. Perez,409 U.S.535,538..606. 13

Jimenez v.Weinberger,417 U.S.628... 26

Kramer v.Union,395 U.S.621,627...2.. 27

Launier v.Launier,143 N.E.219,221.. 25

Legget v.Balderidge,278 U.S.105.... 23

Levy v.Louisiana,391 U.S.68....... 14

Manley v.Georgia,279 U.S.1lecceseeee 16

Meyer v.Nebraska,390 U.S.1262....2.2. 20

MURR Vil2isn0s8, 94 U.S.113.ciwecsae 23

Orr V.Orrs99: S.Ct. 1102. .cce- 6514,17,19

Poe v.Ullman, 367 U.S.497,522,539,545,18

Pratter Viiasoott, 185 U.S.716ccccess 23

Schlesinger,419 U.S.498..cccccccccee 21

Slaughter House Cases,83 U.S.36..... 23

Stanley v.Illinois,405 U.S.663....24,25

OPINIONS BELOW

The Family Court proffered no opinion

on any of the federal questions raised

velow by appellant. No opinion was re-

ndered by the Appellate Division of the

Supreme Court,Second Department, the or-

der of the Family Court was affirmed.

Appellants motion for leave to appeal

to the Court of Sagrarge ogy highest tr-

ibunal in the state of New York was di-

smissed sua sponte on the ground no su-

bstantial constitutional question was

directly involved.Appendix A thru E

STATEMENT OF JURISDICTION

Appellant seeks review of the judgement

entered on February 20,1980 by the New

York State Court of Appeals denying him

review of the judgements of the courts

below, of the federal questions raised.

CONSTITUTIONAL AND STATUTORY PROVISIONS

CONFERRING JURISDICTION

This Court has jurisdiction over the in-

stant matter pursuant to 28 United States

Code 1257(3) which states: Final judgem-

ents or decrees rendered by the highest

court of a state in which decision could

be had,may be reviewed by the Supreme Co-

urt as follows: (3) By writ of certiorari

where the validity of a state statute is

drawn into question on the ground of its

being repugnant to the Constitution or

where any...right,privilege or immunity

is specially set up or claimed under the

Constitution.

@-1<

'

QUESTIONS PRESENTED FOR REVIEW

Child support statutes of New York St-

ate that base a parents obligation so-

ley on marital status and gender in ex-

empting mothers as a class,require a fa-

ther to reduce his standard of living in

order to maintain his wifes exemption

and prior standard of living,apply a pre-

sumption of means or ability rule dis-

criminately to father and exempt mothers,

and allow a court to ignore the facts

and circumstances of the case in its de-

cision,and preempt and intrude on the

parties right to fix the terms and con-

ditions of their marriage contract,are

an deprival of appellants constitution-

ally guaranteed rights to privacy,cont-

ract,due process and equal protection.

The statutes abrogate the ninth,tenth

and fourteenth amendments to the const-

itution and are outside the states po

wer and delegated authority.

Appellant seeks a judgement from this

Court if appeal is granted extending

child support obligations to both par-

ents,enforcement of his implied con-

tract and a holding that support st-

atutes must be applied gender neutral.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

NINTH AMENDMENT OF THE UNITED STATES

CONSTITUTION, Constitution of the Unit-

ed States of America,Jayson,1972,p.1257.

The enumeration in the constitution of

certain rights,shall not be construed to

deny or disparage others retained by the

People. re

TENTH AMENDMENT OF THE UNITED STATES

CONSTITUTION, Constitution of the United

States of America,Jayson, 1972,p.1263.

The powers not delegated to the United

States by the constitution,nor prohibit-

ed by it to the States are reserved to

the States respectively.

FOURTEENTH AMENDMENT OF THE UNITED STATES

CONSTITUTION, Constitution of the United

States of America,Jayson, 1972, p. 1303.

All persons born or naturalized in the

United States and subject to the juris-

diction thereof,are citizens of the Un-

ited States and the State wherein they

reside.No State shall make or enforce

any law which shall abridge the privil-

eges and immunities of citizens of the

United States;no shall any State deprive

any person of life,liberty,or property,

without due process of law;nor deny any

person within its jurisdiction the equal

protection of the | aws.

ARTICLE SIX OF THE WNITED STATES CONST

ITUTION, Constitution of the United Sta-

tes of America,Jayson,1972,p.18. This

constitution,and all the laws of the Un-

ited States which shall be made in pur-

suance thereofj;and all the treaties made

or which shall be made,under the author-

ity of the United States,shall be the

Supreme Law of the Land;and the judges

in every state shall bound thereby,any-

thing in the constitution or laws of any

state to the contrary notwithstanding.

GENERAL OBLIGATIONS LAW 5-311,Family Law

Bender pamphlet edition, 1978,Misc.143.

Certain agreements between husband and

on,

wife void: A husband and wife cannot con-

tract to alter or dissolve the marriage

or to relieve the husband from his liab-

ility to support his wife or to relieve

the wife of liability to support her hus-

band provided that she is possessed of

sufficient means and he is incapable of

supporting himself and is or is likely

to become a public charge.

FAMILY COURT ACT 513,McKinneys Consolid-

ated Laws of New York.29a,p.439. Oblig-

ation of Parents: Each parent of a child

born out of wedlock is liable for the ne-

cessary support and education of the ch-

ild and for the childs funeral expenses.

FAMILY COURT ACT 413.McKinneys Consolid-

ated Laws of New York.29a,p.236. Fathers

duty to support child: The father of a

child under the age of twenty-one years

is chargeable with the support of his ch-

ild and,if possessed of sufficient means

or able to earn such means,may be requir-

ed to pay for such childs support a fair

and reasonable sum according to his mea-

ns,as the court may determine.

FAMILY COURT ACT 437,McKinneys Consolid-

ated Laws of New York.29a,p.325. Presump-

tion of sufficient means: A respondent is

prima facie presumed in a hearing under

section 433 and section 454 to have suff-

icient means to support his wife and chi-

ldren under the age of 21 years.

FAMILY COURT ACT 438,McKinneys Consolid-

ated Laws cf New York.29a.p.327. Counsel

fees: In any proceeding under this arti-

cle by a wife or former wife,against her

husband,or former husband,including pro-

ceedings for herself and her chilidren,or

by a person on behalf of children only,

aha

or at any hearing to modify or enforce

an order entered in that proceeding or

@ proceeding by a husband or former hu-

sband to modify a decree of divorce,sep-

aration,or annulment,including an appeal

under article ten the court may allow co-

unsel fees at any stage of the proceeding

to the attorney representing the wife,

former wife or person on behalf of child-

ren.

STATEMENT OF THE CASE

After dissclution of the parties marriage

contract the trial court referred the

issue of child support and counsel fees

to the Family Court of Rockland County,

which entered an order of support and co-

unsel fees which exempted appellee-pet-

ioner from any obligation whatsoever. The

trial court ignored evidence of appellees

history of employment and the fact that

appellant-respondent was not possessed of

sufficient means with which to discharge

the terms of the order and support hims-

elf,citing as authority a presumption of

means rule(appendix F).

The trial court was bound by statutes that

exempted mothers of legitimate children

from support and counsel fee liability(F

CA 413,437,438 and GOL. 5-311).Also disre-

garded was the parties implicit agreement

to share the support obligations and the

fourteenth amendments commands which are

an integral part of every state court ju-

dilinantt heti cle 6,Constitution). The co-

urts judgement left after support payments

appellant $70 per month for his own exp-

enses, and the children with a reduced

measure of support as compared with a gr-

eater sum if both parents were required

-5—

by the state to provide child support.

Appellant took an appeal on the grounds

that his right to due process were den-

ied in that the state substituted judge-

ment by legislative fiat,lieu of a fair

and impartial hearing and determination

on the merits, as guaranteed by the 14th.

amendment.The statutes command a direct-

ed judgement against fathers while exem-

pting mothers in contravention of the eq-

ual protection clause of the 14th. amend-

ment,and that the presumptions of means

and ability statutes(FCA 413,437) deny

appellant due process in that they per-

mit a court to render judgements incon-

sistent with the facts of the case,make

the hearing a sham.Implict and silent pa-

rties in the case were the innocent and

powerless children who were discriminated

against because they were legitimate and

could as a matter of law enjoy support

only from their father,while illegitimate

childern can receive support from both

their parents(FCA 513).The appellate co-

urt affirmed the orders and had no opinion

on the federal questions raised.

FEDERAL QUESTIONS RAISED BELOW

In the trial court,Family Court of Rock-

land,on March 18,1979, a month before de-

cision was rendered,appellant submitted

a Judicial Notice of Law in support of

his claim that he was entitled to apport-

ionment of support and counsel fees with

his ex wife.Appellant cited the following;

Page 1,0rr vs.Orr,440U.S.__—,a _ landmark

Gecision ruling that all support laws th-

at discriminate on the basis of sex are

unconstitutional pursuant to USCA 14,app-

ortionment of child support is constitut-

ionally mandated,standard of living rule

is unconstitutional if applied discrimin-

ay

ately against males,that the right to co-

ntract into marriage and set the terms a-

nd conditions of that contract is reserv-

ed to the people and the state by enact-

ing and enforceing statutes that preclude

and preempt that private right is a vio-

lation of constitutional rights.The State

must enforce the marriage contract,

Page 2 Under DRL 236,237 and 240,FCA 412,

413 and 438 wives(mothers) are not requir-

ed to support their children,the laws are

a denial of equal protection of the law

and unconstitutional under USCA 14.

Page 3 This court must apportion the su-

pport of the children equally between the

parents,including but not limited to co-

unsel fees,consistent with Orr.

Page 4. For the court to direct the def-

endant to maintain the standard of living

of his family at the expense of reducing

his own is unconstitutional under USCA 14.

Page 5. The parties right to enter into

the contract of marriage is guaranteed by

the constitution and to set the terms and

conditions of that contractual obligation

is part of that guarantee.

The state by enacting and enforceing stat-

utes that limit and impair that right to

contract is a violation of USCA 9.By pre-

cluding and preempting that right and ma-

king it against public policy his constit-

utional rights are violated.

Page 6. The state is mandated by Article

1,section 10(1) not to pass any laws that

impair the obligation of contracts.By mak-

ing marriage contracts against public po-

licy(GOL 5-311)the — has impaired de-

fendants right to contract.The states ha-

ve a constitutional mandate to enforce

his marriage contract.

The state by setting the terms and condi-

tions of defendants marriage contract th-

rough the matrimonial laws,did so without

constitutional jurisdiction, the setting

of those terms and conditions is reserved

to the people,(USCA 9 and 14) and not wi-

thin the police powers delegated to the

states by USCA 10 and 14,

Page 7. The constitution reserves to the

states certain police powers,...the state

cannot ask a private party to perform a

public function delegated to the states,

to wit guaranteeing that the ex spouse

will not go on public assistance,....a

function of the state.

The order and decision of the trial court

reflect no opinion on the federal quest-

ions raised or that it was moved by those

arguments or passed on their validity.

On July 24,1979,appellant submitted to

the Appellate Division,Second Department

a brief on appeal of the orders of the

court below which again asserted the fed-

eral questions.

Page 7. Since the orders discriminate on

every point against appellant who is male,

(liability for support,capability and the

means of the parties)by exempting appell-

ee from any liability,the orders are in-

consistent with Orr.

Page 8. The state has enacted and enforc-

es several laws that prohibit citizens fr-

om contracting to share the burdens and

benefits of the contract,to fix the terms

and conditions by agreement before,during

or after dissolution.....and impresses up-

aie

on a husband the sole liability for su-

pport and maintenance of his wife,or ex

ea and children,FCA 412,413,DRL 32(1)

2).

Page 9. The individuals right to contract

is reserved to the people,and guaranteed

by USCA 9 and 14.

Page 10. The state by rewarding the party

who breached the contract of marriage,

with awards of alimony,counsel fees and

exempting that party from their duty to

contribute toward the support of their

children,insures that the contract can be

breached with impunity and harmless from

damages. The most effective remedy to br-

each of the marriage contract is the cer-

tainty of no reward.

The states have a constitutional mandate

inherent in the police powers delegated

to them to provide for the general welf-

are,..e-public assistance,a state may not

relinquish that duty or transfer it to an

individual,...requiring him to perform a

public function,...as it does in direct-

ing an ex husband to guarantee that his

ex wife and children will not become pub-

lic charges.

Page 11. The state directed appellant in

addition to discharging his child support

obligation to also discharge his ex wifes

share,without any provision for prospect-

ive recoupment at the time appellee was

possessed of the means to repay appellant.

The support order directs appellant to...

maintain his children in the style they

were accustomed to,which leaves appellant

with $50 per month for maintaining hims-

elf in the standard he was accustomed to,

absolutely impossible. It is a violation

=9-

of the equal protection clause in USCA 14

to direct a citizen(appellant)to reduce

his own standard of living in order to ma-

intain his families prior standard.

Page 12. The court(state)passed judgement

on the fairness of the award to the ex-

wife and children,while electing not to

determine the fairness to the husband(ap-

pellant) denying him his constitutional

rights to equal protection and due process

under USCA 14,

(The )Court explained that every respond-

ent is presumed to be possessed of suffi-

cent means to pay whatever the court de-

termines is fair and proper support irr-

espective of the weight of unrebutted ev-

idence to the contrary....this rule all-

owed the court to lawfully disregard ...

due process and equal protection rights.

Page 13. Given the equal obligation of the

parties for the support of the children,

both the parties are in effect respondents

under FCA 437,cloaked with the presumpt-

ion of sufficient means, The states app-

lication of the rule discriminately aga-

inst appellant only,exempting appellee,

is prohibited to the states that it is

an abridgement of appellants rights to eq-

ual protection under USCA 14.All presumpt-

ions by their very nature are suspect,in

that they are an abridgement of due pro-

cess rights.

Nor as the court suggests is the rule a

proxy relieving the court from making fi-

ndings consistent with the facts and ev-

idence,presented in open court....and to

support conclusions that are not made on

the evidence.

=100

Page 16, It is gratuitous for the state

to assume that all ex wives cannot cont-

ribute toward their own and their child-

rens support,since the assumption is se-

lf fulfilling ,in that requiring the ex-

hu: »and(father)to bear the sole burden,

precludes the necessity for the ex-wife

to become self sufficient.

Wherefore;appellant respectfully requests

that this court grant him the following

relief;

1. An amendment of the support order da-

ted April 18,1979,directing that each of

the parties are liable toward contribut-

ing...to the support of the children.

2. An amendment of both counsel fee or-

ders dated May 28,1979,deleting respond-

ent and adding petitioner as the payor.

3. A declaratory judgement that all supp-

ort statutes not gender neutral are uncon-

stitutional,void and unenforceable.

4, A declaratory judgement that the st-

ate must enforce marriage contracts whi-

ch supercede state laws controlling.

5. A declaratory judgement that the stan-

dard of living and presumption of means

rule are void and unenforceable.

On December 17,1979 the appellate court

affirmed the three orders unanimously wi-

the no opinion or passing on the federal

questions raised.

In the Court of Appeals the states highest

court on January 22,1980 appellant filed

a motion for leave to appeal pursuant to

CPLR 5601.The court denied appellants mo-

tion on the grounds no substantial cons-

titutional question was directly involved.

THE QUESTION PRESENTED IS NOVEL,SUBSTANT

IAL,OF CONTINUING IMPORTANCE TO APPELLANT

AND THE NATIONAL FABRIC OF SOCIETY IN THE

PRESENT AND FUTURE

The federal question raised herein are

substantial in that the effect powerless

children,who must be protected by society.

The subject statutes discriminate against

all the parties and place an onerous bur-

den on society, that a fair statutory sc-

heme would not.When child support goes

uncollected or is insuffcient,it is soc-

iety that must pick up the burden.Over

75% of child support goes uncollected to

4,000,000 families. (Divorce,Child Custody

and Child Support,Bureau of Census,June

1979,series P-23,no.84,page 3).The prob-

lem is not limited to the state of New

York but is of national scope as the st-

atistics cited show. The root cause of the

effect is the gross unfairness of discr-

iminatory support statutes that exempt a

parent from any support liability soley

on marital status and gender. What is the

moral responsibility of the parents bec-

omes the societies,when in frustration an

unfairly burdened father throws up his

hands and abandons his obligation to his

children.

If the child support burden were apport-

ioned as a matter of law between both the

parents the problem for society would la-

rgely disappear, to the benefit of all.

-12@

As a practical matter children can en-

joy a greater measure of support from

both parents than they can from one.

The statutory schemes challenged here

penalize innocent children by limiting

the support they can receive to their

father alone,and exempt a mother from

any obligation,who is rewarded by her

freedom from the burden and the necess-

ity to become self sufficient and a

contributor toward the best interests

of their children.

Illegitimate children in New York enjoy

support from both parents as a matter

of public policy(FCA 513)while legitimate

children as a matter of law can only

receive crumbs from the table that a

father alone and over burdened can pro-

vide, resulting in a lower standard of

living and contrary to the best inter-

ests of the children. The states policy

encourages illegitimacy for reasons th-

at escape me,why should a father marry

the mother of his children knowing that

he must shoulder the mothers obligation

in addition to his own.

In Gomez v.Perez,409 U.S.535,538,the Co-

urt said: Once a state posits a judicial-

ly enforceable right on behalf of childr-

en to needed support from their natural

fathers there is no constitutionally suf-

ficient justification for denying such

an essential right to a child simply be-

cause its natural father has not(or has)

married its mother.

The dicta above support appellants cont-

entions that his children should not be

denied support from both their parents

just because they a

a4 3a

In reality the petitioner-beneficiaries

in the support proceeding were the chil-

dren who certainly had a right to an eq-

ual measure of support from each of th-

eir parents,without regard as to whether

or not they are legitimate or illegitam-

ate Levy v. Louisiana, 391 U.S.68,Glona v,

thereon gurantee Co. ,391 U.S.73)or to

gender of their pare

Wr Uigters 4979. parents Orr vs.Orr,

The child support award was made on avp-

ellants ability and exempted sipeliae tr

om the same yardstick applied to appell-

ant,irrespective of her proven ability

to contribute toward the support of her

children,in violation of equal protect-

ion under the law guarantees under the

14th.amendment,and due process in that

the exemption was accomplished before a

hearing by legislative fiat and not on

the merits pursuant to FCA 413 and 437

a respondent as a matter of law can on-

ly be a father(male) unless he is dead

or incapacitated(FCA 414),highly unlik-

ely since the median life span of a male

oy Piivad orate States is 60 years,long

er e procreative

atieeead a years nature has

The state policy of entering an order of

Support on a ability basis upon a find-

ing that a respondent lacks the means to

discharge an order directing him to sup-

port himself and his family in the style

they were accustomed to,unfairly discrim-

inates between the rich and poor father,

by mandating a fictional measure of award

based on the courts hypothetical fixing

of what he might earn if he tried a litt-

le harder andhad good fortune to meet

-14-

the courts supposed abilities of the fa-

ther which as a matter of law are prede-

termined by legislative fiat(FCA 413)

and not on the facts of the case a con-

travention of his rights to a hearing

pursuant to state law(FCA 433)and due

process guarantees under the 14th.amend-

ment.The same presumption does not app-

ly as a matter of law to mothers charg-

ed with the support of their children

under state law(FCA 414)unconstitution-

al under the 14th.amendment.

A affluent father is measured by his ac-

tual means in fixing the amount of supp-

ort which does not require extraordinary

effort on his part to satisfy,and not

speculative as is the order entered ag-

ainst a poor father based on a legisla-

tive assumption arrived at not in the co-

urt room but in legislative chambers in

the capital,the most onerous of due pro-

cess deprivation imaginable.

If the poor father fails to live up to

the order of support based on his hypo-

thetical abilities,he suffers exposure

to contempt of court and incarceration

proceedings(FCA 454) most choose to fl-

ee the jurisdiction than suffer such a

arbitrary and unfair fate.Few among us

ever reach our potential ability,must we

be penalized? The statutory scheme pre-

sents a father with a stacked deck in

derogation of his right to a fair and

impartial hearing and disposition. The

states posture posits a sink or swim

alternative for a hapless father.

The constitutional right to be heard is

a basic aspect of the duty of government

to follow a fair process of decision ma-

king when it acts to deprive a person

-15-

of his property.The purpose of this req-

uirement is not only to insure abstract

fair play,its purpose more particuliarly

is to protect his use and possession of

property from arbitrary encroachment, to

minimize substantially unfair or mistaken

deprivations of property,a danger that is

especially great when the state seizes

goods simply upon the application of and

for the benefit of a private party. Feuen-

tes v.Shevin,407 U.S.80-81,

As long as a presumption is not unreas-

onable and is not conclusive of the ri-

ghts of the person against whom raised,

it does not violate the due process clau-

se. Legislative fiat may not take the pl-

ace of fact,however,in the determination

of issues involving life,liberty or pro-

perty,and a statute creating a presumpt-

ion which is entirely arbitrary and wh-

ich operated to deny a fair opportunity

to repel it or to present facts pertin-

ent to ones defense is void.Manley v.

PPP EEE U.S.1,5;Bailey v,Alabama,219

6 e .2 @

A statute which treated a breach of con-

tract to labor as prima facie evidence to

defraud....was found to be constitutiona-

lly defective because the trial court was

permitted to disregard evidence rational-

ly bearing ....and to decide upon evidin-

ce pertaining to an unrelated breach of

contract,with the consequence that an ad-

equate hearing upon fraud was not afford-

ed.Bailey v.Alabama,219 U.S.219,233,

The state of New York did not meet the

dicta set forth by this court as to pre-

a and a fair and impartial hear-

ng

@16<

The rights of appellant and his child-

ren were seriously impaired by the st-

atutes and their application in that a

fair and impartial hearing untainted by

legislative presumptions that operated

conclusively to bring about a finding

contrary to the facts and circumstances

of the case, resulting in a sham hear-

ing that produced perverse results. Ap-

pellant would not have had the sole fi-

nancial burden of child support had the

trial court not been bound by statutory

presumptions.

Since the state requires a hearing as a

matter of policy no additional burden

accrues upon the state or the parties by

a determination on the merits at trial

rather than the present policy,by legis-

lative fiat.(FCA 433). Orr v.0Orr,99 S.Ct.

1113. the Court said: in such circumstan-

ces,not even an administrative convenie-

nee ratianale exsists to justify operat-

ing by generalization.

Nor can the state justify or recognize

special wards such as mothers entitled

to a greater degree of protection than

that accorded others. In University of

California Regents v.Bakke,57 L.ba od

774, the Court said: It 1s too late to

augue that the guarantee of equal pro-

tection to all persons permits the re-

cognition of special wards entitled to

a degree of protection greater than th-

at accorded others. There is a measure

of inequity in forcing innocent persons

in respondents position to bear the bu-

rdens of redressing grievances not of

thier making.(Id at 776).

ot7a

ite

In order to justify the use of a(support)

classification,a state must show that its

purpose or interest is both constitution-

ally permissable and substantial and that

its use of the classification is necessa-

ry.-.to the accomplishment of the purpose

or the safegarding of its interest.Id at

781,also Poe v.Ullman,367 U.S.497,522,539,

to 545.

Preferring members of one group soley on

the basis of race or ethnic origin(gend-

er,marital status) is discrimination for

its own sake,which the 14th.amendment for-

bids,Bakke at 782.

And Bakke continued: We have never appr-

oved a classification that aids persons

perceived as members of relatively vic-

timized groups at the expense of other in-

nocent individuals in the absence of judi-

cial,legislative or administrative findi-

ngs of constitutional or statutory viola-

tion...also the remedial action usually

remains subject to continuing oversight

to assure that it will work the least ha-

rm possible to other innocent persons...

Without such findings of constitutional

or statutory violations it cannot be sa-

id that the Government has any greater

interest in helping one individual than

in refraining from harming another. Thus

the Government has no compelling justi-

fication for inflicting such harm, Bakke

at 782-783. Neither the legislature or

the judiciary of the state of New York

have ever made any findings that mothers

or women as a class have suffered any co-

nstitutional or statutory deprivations

nor the trial court in the instant case,

consistent with the dicta in Bakke,how

could it then justify harming appellant

and his children so that appellee may

-18<

enjoy a beneficial exemption from child

support obligations,doubly so when in fa-

ct she did not need such solicitude.

The state of New York saddled appellant

with personal responsibility to protect

appellee from supposed injustices to wh-

ich society,not he,will submit her to in

the marketplace and without a judicial de-

termination that she has in fact been in-

jured or requires such special consider-

ation to justify depriving appellant of

his guaranteed rights to equal protect-

ion and due process under the law.

Motherhood or wife is a role stereotype

similiar to that which was held imperm-

issable in Califano v.Webster,430 U.S.

* 313,317 and in Orr v.Orr 99 S.Ct.1113.

Continuing the Orr Court said: Legislat-

ive classifications which distribute be-

nefits and burdens on the basis of gend-

er carry the inherent risk of reinforc-

ing the stereotypes about the proper pl-

ace of women and their need for special

protection.Id at 1113. Since only the fe-

male gender can classify as a mother or

wife all of the classifications are the

same and treated under the law with st-

rict scrutiny and consistent with dicta

concernining gender classifications held

unconstitutional, previously,in Orr,Stan-

ton and Califano.

Appellants marriage contract and the te-

rms and conditions thereof in allocating

the support obligations between the par-

ties by mutual agreement is prohibited

and impaired by state laws that make su-

ch an agreement against public policy,

(GOL 5=311) and preempt or preclude the

parties right under the 9th.amendment to

make thier own contract and agreements

without state interference or intrusion.

o19—

an invasion of privacy.Griswold v.Conn-

ecticutt,381 U.S.488,491,492. The state

interest is not harmed in any way if it

permitted and enforced contracts before,

during or after marriage since if the re-

sulting agreement was unconscionable or

injurious to the individuals or the pub-

lic,under exsisting state law it reser-

ves the right not to enforce, or remedy

any wrongs resulting. To deny all indiv-

iduals their inalienable right to contr-

act into marriage(Meyer v.Nebraska, 390

U.S.1262 )and the obligations accruing,on

the ground some one individual might ma-

ke an unconscionable agreement is state

action operating by broad generalizations

impermissably under the 14th.amendment.

The framers of the constitution incorp-

orated checks and balances between the

three levels of government and the gua-

rantee to every individual to be free

from an anonymous bureaucracy directing

his life by remote control from some st-

ate capital. Nor has history demonstrat-

ed that public official are better suit-

ed,qualified or possess a greater wisdom

than the peoples they can represent as

a whole but not permitted to do so ina

manner that invades the rights and pri-

vacy constitutionally guaranteed by the

9th.amendment,to each citizen individua-

lly.

As a practical matter the largest under-

taking by individuals is the contract of

marriage, a tremendous and ongoing vent-

ure where the state unlike every other

civil contract does not permit an indiv-

idual to sit down with his counsel and

arrive at a agreement suitable to the in-

terests and compatable with the obligat-

ions of the parties. The prospect of non=

enforcement and prohibition by the state

of appellants express contract had a ch-

illing effect in the free election of his

right to exercise that privilege,no cont-

ract under these adverse circumstances c-

an be freely entered into,thus the impair-

ment.

In the instant case a comparison of Sche-

Singer,419 U.S.498,and Webster,430 U.S.

313,to Wiesenfeld,420 U.S.636 and Goldfa-

xrbo,430 U.S.199,establishes that this Cou-

rt will not accept a mere assertion of

the states benign intent as a justificat-

ion for denying an individuals constitu-

tional rights.

Given the states present monopoly in dis-

solution of marriage,as a practical matt-

er if the state in the exercise of its mo-

nopoly abuses the individual rights of li-

tigants that franchise should be given ba-

ck to the people where it belongs. No off-

cial body can love another individuals

issue to the degree of its creator. Nor

is a settlement upon dissolution,under

the gun of state policy,commanding one

parent to be the sole provider of child

Support,be said,one which was freely en-

tered into not under duress,such state in-

trusion is gratutious and unconstitutional.

An unconstitutional application of the

law is sufficient of itself to warrant

“$0 ia 3 te this Court.Turner v. Fouche, 396

U.S.346,

Under the common law and state law a pa-

rty guilty of misconduct may not recieve

alimony(DRL 170,236 )appellee was such a

party and the state rewarded her miscon-

duct with an exemption from child support

and counsel fees liability which far and

away exceeded any alimony the court may

ioe ten

|

have awarded,that exemption in the form

of a reward demonstrated the state poli-

cy ot permitting and condoning the bre-

ach by a guilty party of the marriage co-

ntract,which the state policy is supposed

to discourage,the application of state

court judgements in the appellants case

violated the prohibition of Article 1,

section 10(1) of the constitution, forbid-

ing the states from passing any laws imp-

airing the obligation of contracts. The

most effective guarantee that a marriage

contract will be faithfully observed is

the certainity of no reward upon a breach.

The ultimate abuse was the states direct-

ing appellant to pay appellees exhorbita-

nt counsel fees in the procurement of her

divorce for which as a matter of law she

is entitled to irrespective of her mis-

conduct in the breach of the marriage ob-

ligation,adding insult to injury,and a

ia ie under Article 1,sect-

ion 10(1).

To pay for the reward,the state granted

appellee for her misconduct,appellant was

directed to provide 93% of his income to

appellee and pay $4,800 of her counsel f-

ees an economic punishment having no bas-

is in any moral or social law,forcing app-

ellant to live on $70 per month,standing

equal protection and equity on its head.

Regulating private contracts is not with-

in the scope of police powers mandated to

the states under the 10th. amendment, which

are limited to the general welfare and no-

t as in this case to private remedies that

do not affect the public at all,in any ev-

ent since the 9th.amendment has reserved

,the right to fix the terms and conditions

of the marriage contract to the individu-

al the state cannot enact laws that pre-

a2 De

empt or preclude the private fundement-

al right to decide the obligations of

that contract.The police power of the

legislature extends to the protection

of lives,limbs,health,comfort and quiet

of all persons,and protection of all pr-

operty within the state.In re Slaughter

House Cases,83 U.S.36,

In Munn v.State of Illinois,94 U.S.113,

this Court said: A socia compact by wh-

ich the whole people covenant with each

citizen and each citizen with the whole

people,that all shall be governed by cer-

tain laws for the common good,does not

confer powers upon the whole people to

contractual rights which are purely and

exclusively private,

This Court said in Carey v.Population Se-

rvices Interns,97 S.Ct.2010: Right in pe-

rsonal privacy includes interest in inde-

pendence in making certain kinds of imp-

ortant decisions,among decisions that an

individual may make without unjustified

government interference are personal de-

cisions relative to marriage.

Also in Louis K,Legget Co.v.Balderidge,

278,U.S.105, followed in Pratter v.Las-

coff,185 N.E.716,this Court said: State

legislation under police power may vio-

late constitutional rights only when it

substantially relates to public health,

safety,morals or general welfare.Other

than police power the states are power-

less under the constitutional mandate of

the 10th.amendment.

Constitutional imperatives of the equal

protection clause must have priority ov-

er the comfortable convienience of the

status quo.Williams v.Illinois,399 U.S.

235. pt

Chief Justice Burger dissenting in Stan-

dey v.Illinois,405 U.S.663,said: Quite

apart from the religious or quasi relig-

ious connotations marriage has and has

historically enjoyed...it is in law an

essentially contractual relationship.

Appellant under the subject state sc-

hemes was presumed to have sufficient

means to provide support of the childr-

en in any amount directed,upon overcom-

ing that presumption successfully the

court determined the award based on his

presumed abilities,a distinction based

on wealth or the lack of it stuck down

by this Court in Tate v.Short,401 U.S.

395,appellee as a matter of law could

not be directed to contribute toward the

Support of the children based on her pre-

Sumed abilities,having been exempted by

legislative fiat rather than as the cons-

titution commands on the merits after a

hearing,thereby depriving appellant of

his property without due process of law

through exemption of appellee of her eq-

ual obligation,which increased appellants

obligation by that amount which appellee

should have contributed,

In Carrington v.Rash,380 U.S.96, this

Court eaia: By the mere fact of appell-

ants gender his obligation was a certa-

inty,not requiring any proof from the

State,by a presumption at law and not in

fact any defense was futile since the pr-

esumption was conclusive,incapable of be-

ing overcome by proof of the most posit-

ive character,

Proceeding by presumption is always ch-

eaper and easier than individualized de-

termination,but when...the procedure fo-

recloses the determative issues...when it

explicitly disdains present realities ...

it needlessly risks running roughshod ov-

er the important interests of both par-

ent and child.It therefore cannot stand

Stanley v.Illinois,405 U.S.656-657.It

resorts on presuming rather than proving

«+eeSOlely because it is more convienie-

nt to presume than to prove.Under the d-

ue process clause that advantage is in-

sufficient to justify refusing a father

a(fair)hearing when the issue at stake

is....his family.Id at 658. The only pu-

rpose of the hearing held in appellants

case was to determine how much he should

pay and not to make any thing but a pre-

tense at inquiring whether the best inte-

rests of the children would be better se-

rved if both parents were directed to pr-

ovide for the children.

Appellant was denied recoupment for any

expenditures over and above or on the be-

half of his wifes(appellees), equal ob-

ligation to support her children, which

he made at a time she did not have the

means to contribute.The silence of the

order of support on the issue barred p-

rospective recoupment at the time appell-

ee did become possessed of the means to

repay appellant,a common law right that

is equitable justice to both parents and

the children without unconstitutionally

placing the sole burden on one party.

The New York Court of gc barge eee end-=

orsed the principle in part.Launier v.

Launier,237 N.Y.357, 365,143 Neb.o19,221.

This Court in Application by Gault, 387

U.S.1 ,the doctrine that setteres as we=-

el as adults have rights under the 14th.

amendment,and the interests of the state

is to insure that thier right to support

is secured in a just and fair manner co-

nsistent with the mandates of the const-

itution and the pipet Rights.

In Jiminez v.Weinber er,417 U.S.628, this

Court held that illegitimate children ha-=

ve a constitutional right to Support equ-

al to that accorded legitimate children,

given the fact that illegitimate child-

ren in New York have a Statutory right

to support from both parents(FCA 515),

legitimate children Should enjoy that

Same right,consistent with Jimenez, ch-

ildren are children regardless of thier

legitimacy or lack of it,and are members

of the same statutory classification

seeking the same benefits,and must be tr-

eated the same,

Given the public policy of protecting the

best interests of the child,those inter-

ests should be the measure of any stat-

utory scheme benefiting them and not any

pecuniary interests the parents may have

in minimizing or eliminating their child

Support obligation,by seeking special so-

licitude from the state by reason of th-

ier gender or marital status.

When government legislates and acts ei-

ther on the basis of a suspect classifi-

cation or with regard to a fundemental

interest ,the traditional standard of e-

qual protection review is abandoned and

the Court exercises a strict scrutiny,

government must demonstrate a high degr-

ee of need on its part,and apparently li-

ttle or no presumption favoring the clas-

sification is to be expected. (Constitut-

ion of the United States,Jayson,1972 at

1474), This case is just such a contro-

versy having suspect classifications and

fundemental interests,intertwined togeth-

er,compelling strict scrutiny from this

Court. The issues here concern classifi-

cation by gender and marital status and

deprivation of ise: sata rights to due

a%be

process,equal protection and privacy.

The other phase of active review of cl-

assifications holds that when certain

fundemental liberties and rights are in-

volved,government classifications which

affect them must be justified by a show-

ing of compelling interest necessitating

the classification and by a showing that.

the distinctions are necessary to furth-

er the purpose.The effect of the test is

to deny to legislative judgements the de-

ference usually accorded them and to dis-

pense with the general presumption of co-

nstitutionality usually given state cl-

assifications.Kramer v.Union Free School

District,395 U.S.621,627.

It should not make any difference to the

state whether one or both parents suppo-

rt children,and in fact the statutes at

issue here exempting mothers,in fact im-

pair that purpose by imposing a burden on

a father compelling him to reduce his st-

andard of living to the point he is lik-

ely to become a public charge,or altern-

atively abandon his children to the pub-

lic dole,or go uncollected,over 75% does

in fact go uncollected nationaly(Divorce

Child Custody and Child Support, Bureau of

Census,June 1979,series P-23,no.84,page 3)

and forceing children to reduced standa-

rds of living by virtue of the statutory

exemption of thier mother from contribu-

ting to thier well being.The state policy

is contrary to the best interests of the

state,children and the parents and this

Court could well remedy the problem by

extending child support obligations to

both parents by voiding the classifica-

tion,father,in the statutes.

=? Tx

silanes, ;

Appellant as well as society as a whole

have a stake in the outcome of this ca-

se if decided for or against him. If th-

is court reviews this case and decides

in favor of extending child support obl-

igations to nudelisataaiiace! his over-

all obligation would conceiveably be re-

duced by appellees contributions present-

ly and in the future since child support

is a continuing obligation,and the state

would benefit by the likelyhood that ap-

pellant and members of his class would

not become public charges or the child-

ren.Appellee and the children would en-

joy a higher standard of living by her

entry into the job market as a result of

her new statutory burden,resulting in in-

come they never had due to the schemes

motivation of having mothers remain pro-

tected at home,relying on the fathers

resources,already strained by maintain-

ing two households where he once had one.

If this Court denies review th status

quo will be maintained along with the

attendant problems society as a whole

must pay for,uncollected support or in-

sufficient support must be made up by

public programs which are Federal funds

in part,making New York problems the bu-

rden of the nation(Aid to Dependant Ch-

ildren) which is unfair to the rest of

the country which played no part in the

mismanagement of this states policies.

Respect for the states support judgements

has suffered untold damage,by its policy

of imposing unreasonable child support

obligations without the opportunity to

fairly adjudicate their propriety in an

impartial forum and manner,.The discrim-

ination of the statutes also cause more

subtle and pervasive injury to all the

parties,by the statutes application and

«2 Be

enforcement,men,women,and children in

New York are trapped in the traditional

gender roles which the statutes reflect.

My daughter is shaped by the role stereo-

type of women-motheraid,my son by the

classic,male-father-provider.In this re-

gard,the distinction not only denigrates

each womans sense of her self and psycho-

logically regulates her to a proper place,

it disrupts the free and mature develop-

ment of women as a whole and limits the

untapped contribution they can make to

society given the chance through state

encouragement instead of repression via

archaic matrimonial laws.

Since child support is a ongoing and co-

ntinuing obligation the questions prese-

nted are likely to recur not only to the

parties here but to each of the parties

coming before the matrimonial courts in

the state, and they also have an inter-

est in the outcome of this case, which

goes beyond the personalities here. Th-

e questions raised therefore are subst-

antial, warranting a decision by this Co-

urt.Super Tire Engineering Co.v.McCorkle,

416,U.S.115.the New York courts have in

effect by failing to squarely resolve th-

e issues presented have passed the buck

to this Court,and that buck stops here,

as President Truman aptly put it.

Since 1960,64,349,000 children ranging

in age from 1 to 18 years old were born

in this nation(Stastical Abstract of U.S.

1979, 100th. edition, table# 80) all of them

entitled to support that is equitable to

them and their parents,under statutes co-

nsistent with the mandates of the const-

itution,the class is substantial in that

-29-

by sheer size they approximate 27% of the

total population and any improvement in

thier status must come from a determin-

ation from this Court that they are ent-

itled to support from both of thier par-

ents.That dicta will have a compounded

effect in that the nations judges will

be more inclined to secure those rights

and parents to accept them by the awe-

Some prestige and respect this Court has

always commanded,

Recently this Court decided a case that

affected a much smaller class of litiga-

nts,putative fathers being denied by st-

atute the right to contest adoption pro=-

ceedings.Caban v.Mohammed,99 S.Ct.1760.

Justice Stevens in dissent said:...This

is a ....case that should have no eff-

ect on the typical adoption proceeding,

indeed,I suspect that it will affect on-

ly a tiny fraction of the cases covered

by the statutes that now must be rewrit-

ten. The instant case affects a much gr-

eater class of litigants and for that re-

ason along with the others,should be gr-

anted certiorari.

The pervasive nature and scope of th

issues and statutes and the national im-

portance of guidance from this court on

what constitutes a workable statutory sc-

heme that balances the rights of the par-

ties with the state interest,requires im-

mediate resolution by this Court impera-

tive.

Given the fact that all the federal que-

stions were properly raised below and

that the questions are substantial, were

never decided by this Court before,this

Squarely presented opportunity to clar-

ify the constitutional issues isa rare

and compelling challenge in the area of

law balancing the interests and relations

-30-

of state and citizen,solomonlike.This Co-

urt has spoken on alimony in Orr,counsel

fees in Childs, and must now speak on

child support and parental right to pri-

vacy in that area, in this case,

CONCLUSION

The questions presented in this petit-

ion are substantial,novel and of great

public importance,concern the doctrine

that implicit in every state statute and

judgement,the commands of the constitut-

ion must be met.Plenary consideration by

this Court,with briefs on the merits and

Oral argument are necessary for thier

resolution.

Respectfully

submitted;

Appellant pro se

=31e

At a term of the Fa-

mily Court of the St-

ate of New York,held

in and for the County

of Rockland on April

18,1979

Present:

Hon. :Alfred J.Weiner

Rose Matsis, Petitioner,

vs. ,

Aristides Matsis, Docket #R-1-78

Respondent. ORDER

This matter having been brought before

the Court on the date of entry hereof,

and after examination and inaquiry into

the facts and circumstances of the case

and after hearing the proofs and testi-

mony in relation thereto,it is ORDERED:

Accordingly,after consideration of all

the facts and circumstances,the Court

finds that the respondent is capable of

contributing to the support of his two

children,in the sum of $225 per week,

to be allocated $112.50 per child. Pay-

ment is to commence on the next regul-

ar payment date,

ENTER: __

HON: Alfred J.Weiner

Se Me i C

io Site ‘

At a term of the Family

Court of the State of

New York held in and for

the County of Rockland on

May 28,1979

PRESENT:

HON.: Alfred J.Weiner

Rose Matsis, Petitioner,

vs. Docket :R-1-78

Aristides Matsis,Respondent. Be 310-78

ORDER

This matter having been brought before the

Court on the date of entry hereof,and

After examination and inquiry into the fa-

cts and circumstances of the case and af-

ter hearing the proofs and testimony in

relation thereto; it is

ORDERED: Fair and proper counsel fees are

hereby fixed in the sum of $3,000.00 to-

gether with disbursements in the sum of

$281.15.Respondent is to pay the total s-

um directly to the petitioners attorney,

within fourty five (45) days of the date

of this decision.

Respondents cross motion is,in all respe-

cts denied.

ENTER:

At a term of the Family

Court of the State of

New York held in and for

the County of Rockland on

May 28,1979

PRESENT:

HON: Alfred J.Weiner

Rose Matsis, Petitioner,

vs. Docket : F=376-76

Aristides Matsis, Respondent. ghee

ORDER

Hon: Alfred J.Weiner

Garis

=~ 330s

This matter having been brought before the

Court on the date of entry hereof,and

After examination and inquiry into the fa-

cts and circumstances of the case and aft-

er hearing the proofs and testimony in re-

lation thereto; it is . ;

ORDERED: Fair and proper counsel fees are

hereby fixed in the sum of $500.00, togeth-

er with disbursements in the sum of $22.38

Respondent to pay the total sum of $522.38

directly to the petitioners attorney,with-

in fourty-five(45) days of the date of th-

is decision.

The respondents motion to dismiss is in

all respects denied.

ENTER:

HON:

Alfred J.Weiner

J «FeGc

=34<

At a term of the Appellate

Division of the Supréme

Court of the State of New

York, Second Judicial Dep=-

artment, held in Kings Co-

unty on December 17,1979

Hon: James D.Hopkins,Justice Presiding

Hon: Vito J.Titone,

Hon: Frank A.Gulotta, Associate Jystices

Hon: John P.Cohalan,Jr.

Rose Matsis, Respondent,

Order on App-

— eals from or-

Aristides Matsis,Appellant. ders

In the above entitled cause,the above nam-

ed Aristides Matsis,respondent in the co-

urt below,having appealed to this court

from three orders of the Family Court, Ro-

ckland County,one dated April 18,1979 and

two dated May 28,1979(said appeals having

been consolidated by an order of this co-

urt dated August 22,1979);and the said ap-

peals having been submitted by Aristides

Matsis,appellant pro se,submitted by Dav-

id M.Kiein Esq.,0f counsel for respondent,

and submitted by Robert J.Schack Esq.of

counsel for intervenor pro se,and due del-

iberation having been had thereon;and upon

this courts decision slip heretofore filed

and made a part hereof,it is

ORDERED: that the orders appealed from are

hereby unanimously affirmed,with one bill

of $50 costs and disbursements payable to

respondent.

ENTER: Irving N.Selkin

Clerk of the App=-

ellate Division

-35-

James D.Hopkins,J.P.

Vito J.Titone

Frank A.Gulotta

John P.Cohalan,Jr. J.J.

AD2d S-December 4,1979

2237 E In the Matter of Rose

2238 E Matsis respondent v.

2239 E Aristides Matsis,appe-

lant.

Aristides Matsis,New York N.Y.appellant

pro se, '

Klein and Klein,Suffern N.Y.(David M.Klein

of counsel),for respondent.

Robert Abrams ,Attorney General,New York,

N.Y.(Robert J.Schack and George D.Zucke-

rman of counsel),intervenor pro se(see

CPLR 1012b).

Three orders of the Family Court, Rockland

County(Weiner,J.),one dated April 18,1979

and two dated May 28,1979,affirmed,with

one bill of $50 costs and disbursements

payable to respondent. No opinion.

HOPKINS, J.P.,TITONE,GULOTTA and COHALAN,JJ

concur,

December 17,1979 IN RE MATSIS v MATSIS

2237E,2238E,2239E

-36<

STATE OF NEW YORK

COURT OF APPEALS

At a session of the Co-

urt,held at Court of App-

eals Hall in the City of

Albany on the twentieth

day of February A.D.1980

PRESENT:Hon. Lawrence H.Cooke,Chief Judge

2 Mo. No. 210 SSD 18

Rose Matsis, Respondent,

vs.

Aristides Matsis, Appellant.

The appellant having filéd a notice of

appeal in the above title and due cons-

ideration having been thereupon had, it

is

ORDERED, that the appeal be and the same

hereby is dismissed without costs,by the

Court sua sponte, upon the ground that no

substantial constitutional question is di-

rectly involved.

Joseph W.Bellacosa

Terk of the Court

o37=

FAMILY COURT OF THE STATE OF NEW YORK

COUNTY OF ROCKLAND

ROSE MATSIS, petitioner,

DECISION

-against- Docket# R-1-78

ARISTIDES MATSIS, Respondent,

WEINER, J.

This proceeding is a Supreme Court refe-

rral to establish support for the parties

two infant children ages 14 and 15,who

are in the custody of the petitioner.

The petitioner has been unemployed since

July of 1978,She was previously employed

for approximately one year at a gross sa-

lary of $225.00 per week. Petitioner est-

imated current monthly needs for herself

and two children to be in the approximate

sum of $1,853.93.

The respondent is the president and sole

shareholder of a corporation which owns

and operates a restaurant. Respondent st-

ates that he is not receiving any income

from this restaurant.Prior to 1974,resp-

ondent owned a second restaurant,the pre-

mises to which he now leases to a third

party.He claims that the $1,040.00 rent-

al income that he receives per month, pu-

rsuant to his lease,is his sole income.

In addition,the respondent,through anot-

her corporation,holds a lease which pro-

duces an income of approximately $10,000

per annum.However the expenses were clai-

med by respondent to exceed income.

-38-

Respondents monthly personal expenses are

in the approximate sum of $1,090.00 which

includes payment of the mortgage on the

marital residence in the sum of $552.93.

The matrimonial residence of the parties

which is currently occupied by petition-

er and the children,is listed for sale at

the price of $130,000.The home has an in

ground pool,a sauna in the basement and is

a spacious,contemporary home.The mortgage

balance is only $28,000.When the parties

were living together,they had hired an in-

terior decorator and furnished the home

expensively.They frequently entertained

in their home at that time.

After the marital breakup,the respondent

continued to pay expenses on the marital

home,including the mortgage of $552,93

per month,utilities of approximately

$300.00 per month and telephone expenses

of approximately $45.00 per month.

A husbands assertion of the extent of his

income is disregarded if evidence of a li-

fe style on a grander scale is presented

to the court,and the court is not bound

to accept the statements in tax returns

as preclusive evidence of pecuniary re-

sources.Accordingly,an unexplained severe

reduction in income and a disposition of

capitol which is not unsatisfactorily acc-

ounted for,is not taken as the true natu-

re and extent of the husbands means, There

is also statutory authority for not giv-

ing complete credence to a husbands proof

of his means in that a respondent in a he-

aring in Family Court is prima facie pre-

sumed to have sufficient means to support

his wife and minor children.(New York Ci-

vil Practice,Zett,Edmonds,Schwartz, page

28-23), -49~-

Accordingly,after careful consideration

of all the facts and circumstances, the

per week,to be allocated $112.50 per ch-

ild. Payment is to commence on oi’ tase

regular payment date.

The clerk of the court is directed to

enter an order in accordance herewith,

Alfred J.Weiner

Judge of Family

Court

Dated: New City N.Y.

April 18,1979

To: Klein & Klein Esq.

One Lafayette Ave,

Suffern New York

Mr.Aristides Matsis

2860 Broadway

New York N.Y.10025

-40-

FAMILY COURT OF THE STATE OF NEW YORK

COUNTY OF ROCKLAND

ROSE MATSIS, Petitioner,

DECISION

~against- Do. #R-1-78

ARISTIDES MATSIS, Respondent.

WEINER, J.

A motion has been made before this Court

on the issue of counsel fees,after refe-

rral from the Rockland County Supreme Co-

urt.

Petitioners attorney has supplemented his

request with an affidavit which delineates

the nature and extent of the legal servi-

ces rendered on behalf of his client.A fee

in the sum of $10,470.00 has been request-

ed, together with disbursements in the sum

of $281.15.

Respondent has opposed petitioners attor-

neys application,and has cross moved for

an award of counsel fees,

An award of counsel fees is discretionary

with the court(Family Court Act,Domestic

Relations Law Section 237) It is not a me-

re arithmetical computation,there are ma-

ny factors that enter into such an exerc-

ise of discretion.

Orr v.Orr,(N.Y.L.J.,March 7,1979,page 2)

requires that those statutes dealing with’

the issue of counsel fees be read to be

gender neutral.

The means of the parties are proper cons-=

iderations. (Kann v.Kann,38 AD2d 545;Metz

ahteq

ieee AD2d 680;Wood v.Wood 21 AD2da

Te

The attorneys skill,competence and his

standing and reputation in the profess-

ion are important considerations,as well

as the nature and amount of work involved

(Di Benedetto v.Di Benedetto,284 AD 982),

Prior awards of counsel fees,if any,must

be considered by the court in determini-

ng whether counsel fees are warranted f-

or services subsequently rendered. (Reim-

er v.Reimer,31 AD2d 482.) Furthermore,

any sums advanced by the petitioner in

payment of a legal fee is also a proper

consideration. (Ross v.Ross,47 AD2d 866;

Press v.Press,49 AD2d 603.)

Regardless of the most conscientious and

necessary legal representation by the pe-

titioners attorney,a fee can only be award

ed only if the court finds the respondent

has the ability to pay it,(Goldfarbd v.Go-

ldfarb,34 AD2d 774),and even then it can

be awarded only in accordance with his

means(Wood v.Wood,supra)

Accordingly fair and proper counsel fees

are hereby fixed in the sum of $3,000.00

together with disbursements in the sum of

$281.i5.Respondent is to pay the total

sum Of $3,281.15 directly to the petition-

ers attorney,within fourty five(45) days

of the date of this decision.

Respondents cross motion is,in all resp-

ects denied.

The clerk of this court is hereby instru-

cted to prepare an order in accordance wi-

th this decision.

-42. Alfred J.Weiner

JoFele

FAMILY COURT OF THE STATE OF NEW YORK

COUNTY OF ROCKLAND

ROSE MATSIS, Petitioner,

-against- DECISION

ARISTIDES MATSIS, Respondent. *~>76-76

WEINER,J.

An application has been made to this co-

urt for counsel fees,rendered in connec-

tion with petitioners application for an

order of protection under the Family Co-

urt Act,Section 446,and an ensuing appeal

Petitioners attorney has supplemented his

request made in, open court with an affid-

avit which delineates the nature and ext-

ent of the legal services rendered on be-

half of his client. A fee in the sum of

$2,490.00 has been requested,together wi-

th disbursements in the sum of $22.38,

Respondent has opposed petitioners attor-

neys application by motion to dismiss.

An award of counsel fees is discretionary

with the court(Family Court Act,Section

438).It is not a mere arithmetical compu-

tation,there are many factors that enter

into such an excercise of discretion.

Orr v.Orr(N.Y.L.J.,March 7,1979 page 2)

requires those statutes dealing with the

issue of counsel fees be read to be gen-=

der neutral.

Section 237 of the Domestic Relations Law

permits the courts to award counsel fees

-43-

7 Po

as justice requires,and has frequently

been interpreted to allow counsel fee

award to a wife in defending an appeal.

(Fox v. Fox,263 N.Y.68,Tacchino v.Tacch-

ino,47 AD2d 830,Miraldi v.Miraldi,37 AD

2d842,In re Schloss, NYLJ,May 11,1978,

N.Y.County Supreme Court,page 11). .

The means of all parties are proper con-

Siderations. (Kann v.Kann,38 AD2d 545;

Metz v.Metz,40 AD2d 680;Wood v.Wood,21

AD2d 627).

The attorneys skill,competence and his

Standing and reputation are important co-

nsiderations,as well as the nature and

amount of work involved.(Di Benedetto v.

Di Benedetto,284 AD 982).The necessity

and the merits of the proceeding are al-

so among the factors to be considered.

(Salk v.Salk,57 AD2d 519),

Prior awards of counsel fees,if any,must

be considered by the court in determining

whether counsel fees are warranted for se-

rvices subsequently rendered.(Reimer v.

Reimer,31 AD2d Sac), Surtkaenese one sums

advanced by the petitioner in payment of

a legal fee is also a proper considerat-

ion.(Ross v.Ross,47 AD2d 866;Press v. Pr-

ess 49 AD2d 603),

Regardless of the most conscientious and

necessary legal representation by the pe-

titioners attorney,a fee can be awarded

only if the court finds the respondent

has the ability to pay it,(Goldfarb v.

Goldfarb,34 AD2d 774),and even then it

can be awarded only in accordance with

his means,(Wood v.Wood,supra).

Accordingly,fair and proper counsel fees

are hereby fixed in the sum of $500.00,

together with disbursements in the sum of

-44-

&

%

>

$23.38.Respondent is to pay the total

sum of $522.38 directly to the petiti-

oners attorney,within fourty five(45)

days of the date of this decision.

>. ST en ap germ

The respondents motion to dismiss is,

in all respects denied.

The clerk of the court is hereby instr- :

ucted to prepare an order in accordance }

with this Decision.

Alfred J.Weiner

Dated: May 28,1979 JoFeCe

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