To summarize the introduction from Part I of our profile, Judge Bolin was recognized as the first African American woman graduate of Yale Law School; attorney in the New York City Law Department;2 and judge in the United States. Judge Bolin’s distinguished and pioneering career has been underrecognized. Part I analyzed a juvenile delinquency case adjudicated by Judge Bolin in the Family Court.3 In this Part II, the article covers civil cases that Jane Bolin handled as an attorney while at the Law Department4 and as a judge.
Since Judge Bolin’s time on the bench, child support determinations have changed with New York’s adoption of child support guidelines consistent with federal requirements and implementation of the Uniform Interstate Family Support Act (UIFSA).5 These decisions also preceded the Supreme Court’s determination that an alimony statute that treated men and women differently violated equal protection.6 At a time when many male judges, attorneys, and spouses in Domestic Relations Court were not guaranteeing enough financial support for women left with the children, Judge Bolin strived to achieve the utmost fairness in her child support determinations.7
I. Assistant Corporation Counsel in the New York City Law Department
A. Wignall v. Wignall (1937)8
Shortly after joining the Law Department as the first African American woman assistant corporation counsel and while assigned to handle child support cases,9 Jane Bolin represented the City of New York in Wignall v. Wignall. In this case, the paternal grandmother of two minor children filed a petition seeking to compel her daughter-in-law to “contribute an adequate sum for their support.”10 In its decision, the court noted that in a prior petition brought by the grandmother, another family court judge ordered the father, who was employed, to contribute $25 per month toward the children’s support.11 Notwithstanding the order from the prior petition, in the Wignall petition, Judge Panken determined that the principle of res judicata would not apply in proceedings in Family Court “where the determination involved [was] one of ability or capacity to contribute to . . . maintenance and support” because the financial condition of the person chargeable with support might change.12 Accordingly, Judge Panken said the Family Court had the power to modify orders upward or downward if it found the support amount to be insufficient.13 The court went on to address whether the children’s mother could be tasked with a support obligation.14 It noted that times had changed and although historically the father had the obligation to support the children while the mother had the responsibility to care for the home and everyone in it, in this case the father had no property or belongings of value and his earnings were small.15 Given the change in times where wives were not as dependent on their husbands, “[a working mother] should contribute to the care . . . of her children. That, however, is not the law in all instances as yet. But, where the father is unable to support the children, and the mother is financially capable to do so, she should support them.”16 Judge Panken stated that section 101 of the Domestic Relations Court Act (L. 1933, Ch. 482) (“the Act”) made the father responsible for supporting his wife and children, but section 101.2 read:
Where the father of a child is dead or incapable of supporting his child or cannot be found within the state, the mother of such child is hereby declared to be chargeable with its support and, if possessed of sufficient means or able to earn such means, may be required to pay for its support a fair and reasonable sum according to her means, as may be determined by the court.17
In Wignall, the court found that the petitioner grandmother had cared for both children since they were infants and was without means.18 While it is unclear from the decision whether the father was also living with his children, it was implicit that the mother was not, and the court determined that the mother was making more than twice what her husband earned.19 Accordingly, the court determined that to not require a financially able mother to support her children unless “they are in danger of becoming a public charge” would be “tantamount to casting aspersions upon motherhood,”20 and ordered the mother to pay an amount towards the support of her children that was equal to the amount the father had been ordered to pay.21 While the issue may not have been of first impression,22 it appears that this decision (explicitly ordering the mother to pay child support) was cutting-edge and significant enough to be cited in multiple cases over the next 30 years.23 But credit is owed to Jane Bolin as the attorney who successfully advocated this position for the Law Department, the children, and their grandmother.
B. Abeles v. Abeles (1937)24
Several months after Jane Bolin appeared for the Law Department in Wignall, she appeared again before the same court and judge in Abeles v. Abeles on behalf of a mother seeking to regain custody of her two children from the custodial school in which they had been placed.25 The Abeles court rejected the petition on subject matter jurisdiction grounds, finding that because an order of protection had not been issued in the case, section 92 of the Act precluded this court from determining child custody.26 The court confirmed that although it made this decision “reluctantly,” the “remedy” to allow the Family Division of the Domestic Relations Court to award custody in such cases was for the New York State legislature to amend the Act.27 The Court’s frustration may have resonated with Bolin, who as Judge Bolin advocated for legislative change in her child support decision in Martin v. Sparks28 (see discussion infra Part II.A).
Subject matter jurisdiction limitations of the Domestic Relations Court were cited in several subsequent cases, including Raffone v. Raffone29 and Judge Jane Bolin’s decision in Martin v. Sparks.
II. Judge of the Domestic Relations Court of New York City
A. Martin v. Sparks (1951)30
Then New York City Mayor Fiorello LaGuardia appointed Jane Bolin to a judgeship in the Domestic Relations Court of New York City in 1939, where she served for 40 years.31 Martin v. Sparks involved the mother of two children who had been granted custody following her divorce.32 As part of the divorce order, the father had to pay $8 per week in support, education, and maintenance based on his income of $27 per week.33 In 1951, the mother petitioned the Domestic Relations Court of New York City, Bronx County, for an increase to at least $35 per week.34 In applying the rule of law, despite always advocating for the interest of children, Judge Bolin dismissed the upward modification petition.35
In dismissing the petition, Judge Bolin confirmed she was constrained due to the court’s lack of subject matter jurisdiction because the Domestic Relations Court was “a statutory Court having solely the enumerated powers expressly conferred by [the Act],” but the supreme court possessed statutory jurisdiction to order support incidental to a matrimonial action.36 To Judge Bolin, this presented a potential jurisdictional conflict; she wrote that section 137 of the Act imposed certain limits on the court’s exercise of concurrent support jurisdiction and the Act authorized the court to enforce the supreme court’s alimony and maintenance awards but did not allow it to go beyond the order to increase the support amount.37
In ruling against the petitioner, Judge Bolin quoted from the original section 137:
Where a divorce, separation or annulment has been granted to the petitioner by the supreme court or a suit for such relief is pending, and the respondent has been required under the terms of any order or decree entered in such separation, divorce or annulment proceeding to pay a specified sum . . . and has failed to do so, that fact shall not be a bar to a proceeding in the family court to compel support within the limits of the order of the supreme court. . . .38
She then quoted from the amended section 137: “If the marriage relationship shall have been terminated by final decree of the supreme court . . . a petition may be filed or an order for support made or enforced in the family court,”39 and:
Where a separation has been granted by the supreme court . . . or an action for divorce, separation, annulment or dissolution is pending, and the [respondent has] been required under the terms of any order or decree entered in such supreme court action, to pay a specified sum . . . and has failed to do so, a proceeding may be instituted in the family court to compel support within the limits of the order or decree of the supreme court. . . .40
While the petitioner argued that the amended section 137 allowed the Family Court to assert jurisdiction to order an increase in child support in post-divorce cases while leaving the restriction intact in nonfinal cases, to Judge Bolin this was a “specious[]” argument in that, contrary to petitioner’s carve-out interpretation, the amendment to the section actually served “to remove all doubt as to the Family Court’s lack of jurisdiction to entertain a new proceeding for support of a former wife. . . .”41 To recognize such a carve-out, Judge Bolin found, would “impute to the Legislature an intent to discriminate against the children of judicially separated parents by confining the power of the Family Court to ‘within the limits’ of the Supreme Court direction for their support while eliminating such ceiling in respect to children of divorced parents.”42 In support of her position, Judge Bolin cited the state supreme court case Massa v. Massa,43 which held that that the Family Court’s statutory powers did not include jurisdiction to modify the support amount in a state supreme court judgment of divorce.44
While Judge Bolin noted there were multiple cases where the Family Court asserted jurisdiction to increase the amount of child support awarded in a sister-state decree of divorce, she discounted those cases for two reasons. The court observed that the decisions cited by petitioner may have been implicitly overruled by the U.S. Supreme Court in Johnson v. Muelberger,45 and it found those decisions to be distinguishable because
they turn wholly on the Full Faith and Credit Clause of the United States Constitution and do not touch at all the totally different instant question of the relation between the matrimonial jurisdiction of the Supreme Court of the State of New York and the summary support jurisdiction of the Domestic Relations Court. . . .46
Although she dismissed the petition on subject matter jurisdiction grounds, Judge Bolin stated that the petitioner was not bereft of remedy, in that the petitioner could apply to the Bronx County Supreme Court for an increase in the support order.47 But Judge Bolin then essentially threw cold water on that possibility, writing that this “remedy is illusory whenever, as often happens, the father’s resources are so slender as to make unpropitious the prospect of sufficient compensation to induce an attorney to undertake a Supreme Court application.”48 Judge Bolin then ended her opinion in the case with an appeal to the New York State Legislature
to amend [§ 137 of the Act] so as to open the door of the Family Court, where the staff prepares all necessary papers without fee, to all children of divorced and judicially separated parents without any restriction as to the amount of the order. . . . [T]he preponderance of cases in this Court involves persons of a financial level which renders impracticable recourse to the Supreme Court. Indeed, many such cases reflect an undue burden on the general public because of the need of the Department of Welfare . . . to supplement inadequate Supreme Court maintenance provisions even though the father’s present financial status would justify his being compelled to contribute more than the Supreme Court award.49
The authors wonder if Judge Bolin felt that she should use this decision to make an appeal for legislative change based on her experience appearing before the judge in Abeles v. Abeles, wherein that court expressed frustration with the legislature’s limitation on the court’s jurisdiction.50
B. Langerman v. Langerman (1952)51
In contrast to Martin v. Sparks (supra Part II.A), where Judge Bolin held that Family Court lacked subject matter jurisdiction to increase a state supreme court support order, in Langerman, another child support case, she held that the court could assert jurisdiction to increase the amount of child support awarded by a court in Nevada.52 Langerman involved a couple where the wife secured a final divorce decree in Nevada, which included custody of the two children, alimony, and support in accordance with prior separation agreements in the amount of $125 per week for her and $25 per week for each child along with medical expenses.53 The respondent ex-husband not only complied with the alimony and support decree but also contributed additional financial benefits to the children.54 About 18 months after the divorce decree, the mother sued the father in New York State Supreme Court for an increase in child support to $100 per week per child.55 That court dismissed the complaint for lack of subject matter jurisdiction, and the dismissal was upheld by the New York Court of Appeals.56
The mother then filed a support petition in Family Court, where Judge Bolin held that because the father resided in New York City and had appeared in court through his attorney, “it [was] unquestionable that this Family Court has jurisdiction to enter its order for the prospective support” of the children.57 The court found that the amount awarded for the children in the Nevada decree was “not binding . . . but that [the children were] entitled to support from their father in whatever amount this Court may adjudge from time to time to be a ‘fair and reasonable sum according to his means.’”58 The court added that the Langerman Court of Appeals case determined that as Nevada law allowed its own courts to modify support awards, the Full Faith and Credit Clause supported this action in New York City’s Domestic Relations Court.59
Further justifying her court’s exercise of jurisdiction, Judge Bolin stated that “the primary duty of support of minor offspring is cast on the father, regardless of any resources of the mother, and that such duty is measured by the child’s needs in relation to the father’s ability to provide and station in life.”60 Judge Bolin rejected the father’s claim that given his support contributions over the $50 maximum listed under section 92 of the Act, the court had no authority to exceed that limit, and held such a restriction was only applicable when both the Family Court and the supreme court had concurrent jurisdiction.61 Judge Bolin found the dollar limit inapplicable because the Family Court was found to have exclusive jurisdiction and the state legislature would never intend for children residing in New York City who were the subject of proceedings in her court to “be limited to an award of $50 a week, no matter how numerous the number of children,” while children elsewhere in New York were not limited to $50.62 In justifying the increase of child support, Judge Bolin went on to describe the residence of the children in an apartment in which the daughter had to share her bedroom with “the maid” while the son slept “in a room with his bed next to a pipe and ha[d] access to the bathroom only through his mother’s bedroom or through the room occupied by the maid and his sister.”63 Judge Bolin’s interpretation of this legislation appears to be consistent with her willingness to comment on what should be the law, given her comments in Martin v. Sparks (see supra Part II.A) and In re Rutane.64
Judge Bolin’s view that the father should be held more responsible for the financial support of the minor child could be considered both antiquated and legally wrong 25 years later, but subsequent courts still hesitated in admitting that.65 For example, in Carter v. Carter, the Appellate Division, Second Department, was asked to declare sections 413 and 414 of the Act unconstitutional on equal protection grounds.66 In Carter, the father had custody of the infant son and applied to the Family Court of Rockland County for an order directing the mother to contribute to the son’s support.67 The Family Court dismissed the father’s petition, and on appeal the father argued these two sections placed the primary duty of child support on the father and made the mother’s duty secondary and should be declared unconstitutional.68 The Carter court refused to do that, but also determined that, when read together, the sections permitted a court to apportion the costs of child support between the parents according to “their respective means and responsibilities,” even when it appeared that the father was fully capable of supporting the child out of his own means.69 Rather than invalidate the two sections of the Act, the Carter court reconciled them with section 240 of the Domestic Relations Law, which provided that in any annulment, separation, or divorce action where there was a child to be supported, the court may make such provision “out of the property of either or both of its parents.”70
III. Conclusion
While it has been well-established that Judge Jane Bolin was a trailblazer for her academic and professional achievements, an examination of Judge Bolin’s work as a judge shows that she did not allow her inclination towards holding in favor of children’s interests to outweigh issuing an adverse ruling against them and in favor of strict interpretation of statutes and regulations when there was no wiggle room. But a decision was not the endgame for her; she used the power of the bench to push for legislative positions that she could not impose judicially, and that was a trait that was consistent with her pioneer status academically and professionally.
Endnotes
1. See supra, p. 265, Patria Frias-Colón & Irwin Weiss, Judge Jane Bolin: Ahead of the Times, Part I: A Look at an Important Decision on Juvenile Interviews, In re Rutane.
2. Id. The Law Department, where Jane Bolin served as an attorney from 1937 to 1939, has established an award in her honor: The Jane M. Bolin Diversity Leadership Award recognizes and celebrates the outstanding contributions and significant impact by an exceptional member of the Law Department in promoting and advocating the office’s diversity goals.
3. Id.
4. The New York City Law Department represents the City of New York, and its agencies, in all affirmative and defensive civil litigation, as well as juvenile delinquency proceedings and interstate child support matters filed in the Family Court. See About the Law Department, N.Y.C. L. Dep’t, https: //www1.nyc.gov/site/law/about/about-the-law-department-page (last visited Jan. 20, 2022).
5. 42 U.S.C. § 667; N.Y. Fam. Ct. Act § 413 (2021); Unif. Interstate Fam. Support Act (UIFSA) (2008); N.Y. Fam. Ct. Act art. 5b (2021) (New York’s version of UIFSA); N.Y. Dom. Rel. Law § 240 (1997).
6. Orr v. Orr, 440 U.S. 268, 278–83 (1979).
7. Jacqueline A. McLeod, Daughter of the Empire State: The Life of Judge Jane Bolin 53–54 (2011).
8. 298 N.Y.S. 251 (Dom. Rel. Ct. 1937).
9. The Family Court Division of the Law Department currently assists custodial parents in interstate child support cases. See Child Support, N.Y.C. L. Dep’t Fam. Ct. Div., https://www1.nyc.gov/site/familycourtdivision/child-support/child-support.page (last visited Mar. 21, 2022).
10. Wignall, 298 N.Y.S. at 252.
11. Id. at 253.
12. Id.
13. Id.
14. Id.
15. Id.
16. Id. at 254.
17. Id. at 254–55.
18. Id. at 255.
19. Id.
20. Id. at 256.
21. Id.
22. See, e.g., Hagopian v. Samuelson, 260 N.Y.S. 24, 26 (App. Div. 1932) (in the context of a tort action, interpreting Dom. Rel. Law. § 81, which stated that “[a] married woman is a joint guardian of her children with her husband, with equal . . . duties in regard to them,” as placing “upon the mother an equal duty of supporting and maintaining the children of the marriage . . .”).
23. See, e.g., Torn v. Torn, 324 N.Y.S.2d 998 (Fam. Ct. 1971) (Wignall was a basis for the decision that the father, if unable to support the child in his custody, could compel the mother to contribute to support); Haslett v. Haslett, 268 N.Y.S.2d 809, 812–13 (App. Div. 1966) (while the primary duty of support was on the father and secondly on mother, the preclusion of the use of marital funds by the husband would contradict the wife’s duty to support the children of a marriage); Anonymous v. Anonymous, 18 N.Y.S.2d 806 (Dom. Rel. Ct. 1940) (compelling mother to pay grandmother child support where father could not be found).
24. 299 N.Y.S. 206 (Dom. Rel. Ct. 1937).
25. Id. at 207.
26. Id. at 207–08.
27. Id. at 208–09.
28. 108 N.Y.S.2d 259 (Dom. Rel. Ct. 1951).
29. 193 N.Y.S.2d 206, 208 (Dom. Rel. Ct. 1959). In Raffone, the husband and wife separated. The husband, a resident of New York City, took their child to his mother’s home in New Jersey and petitioner-mother sought child support. Id. The court noted that its jurisdiction was limited to what was in the Act and, as such, the court had the power to only award the custody of a child “in assistance or as a condition of an order for support.” Id. at 208–09 (quoting the Act, § 92(7), (8)). As respondent already had custody and was supporting the child, the court found that petitioner’s objective was to first obtain custody and then support. Id. Citing §§ 91 and 92 of the Act as well as Abeles v. Abeles, 299 N.Y.S. 206 (Dom. Rel. Ct. 1937), and several other post-Abeles cases, the court dismissed the petition on jurisdictional grounds, finding that the custody issue was vested exclusively in the supreme court. Id.
30. 108 N.Y.S.2d 259 (Dom. Rel. Ct. 1951).
31. Claudia Sutherland, Jane Bolin (1908–2007), Black Past (Dec. 3, 2020), https://www.blackpast.org/african-american-history/bolin-jane-1908-2007/.
32. Sparks, 108 N.Y.S.2d at 261.
33. Id.
34. Id.
35. Id. at 263.
36. Id. at 260–61. As amended in 1942, the Act added language that “In the absence of an order of the supreme court . . . .providing for support of a child . . . the family court may entertain a petition for the support of such child. . . .” Id. at 262 (quoting L. 1942, ch. 762) (emphasis added).
37. Id. at 263.
38. Id. at 261.
39. Id. at 262.
40. Id.
41. Id.
42. Id. at 263 (emphasis added).
43. 96 N.Y.S.2d 758 (Sup. Ct. 1950).
44. Sparks, 108 N.Y.S.2d at 263.
45. 340 U.S. 581 (1951). Muelberger involved a widow who petitioned a New York court to take the statutory one-third share of her deceased husband’s estate, only to be challenged by the husband’s daughter on the grounds that her father’s divorce from his second wife in Florida (petitioner was the third wife) was invalid because the second wife failed to meet Florida residency requirements before filing for divorce there. New York’s Court of Appeals interpreted Florida case law to hold that the Florida divorce decree only bound the husband and his second wife, and his daughter had a right to challenge that divorce collaterally there; therefore the Court of Appeals had to allow the daughter to challenge it in New York as well, pursuant to the Full Faith and Credit Clause of Article IV, Section 1 of the U.S. Constitution. Id. at 583–84. The U.S. Supreme Court rejected the Court of Appeals’s interpretation of Florida case law and reversed, holding that proper application of the Full Faith and Credit Clause meant that the daughter could not attack her father’s divorce decree in New York. Id. at 588–89.
46. Sparks, 108 N.Y.S.2d at 263.
47. Id.
48. Id. at 264.
49. Id.
50. See supra Part I.B discussion.
51. 116 N.Y.S.2d 420 (Dom. Rel. Ct. 1952).
52. Id.
53. Id. at 422–23.
54. Id. at 423.
55. Id.
56. In that case, the supreme court held that it did not have jurisdiction to change the support awarded by the Nevada court, a decision affirmed by the Appellate Division and the Court of Appeals. See Langerman v. Langerman, 104 N.E.2d 857 (N.Y. 1952). The Court of Appeals held that the supreme court was statutorily authorized to provide for child support “only as an incident to a marital action” and lacked jurisdiction in a separate action solely for support and maintenance. Id. at 859. It further found that the only provision for compelling further child support of a child who is a New York City resident through a nonmarital proceeding was to file pursuant to the Act. Id. at 860.
57. Langerman, 116 N.Y.S.2d at 423.
58. Id. at 424 (citation omitted).
59. Id.
60. Id. (emphasis added).
61. Id. at 425.
62. Id. at 427.
63. Id. at 428.
64. Frias-Colón & Weiss, supra note 1.
65. More than 15 cases have since cited to Judge Bolin’s decision in Langerman, from 1952 through 1986. See, e.g., Harvey-Cook v. Neill, 504 N.Y.S.2d 434 (App. Div. 1986); K. v. K., 373 N.Y.S.2d 486 (Fam. Ct. 1975); Kern v. Kern, 319 N.Y.S.2d 178 (Fam. Ct. 1970).
66. 397 N.Y.S.2d 88, 90 (App. Div. 1977).
67. Id. at 89.
68. See id. At the time, the opening language of section 414, titled “Mother’s duty to support child; apportionment,” read that “the mother becomes liable for contribution to the support of the child only if the father ‘is dead, incapable of supporting his child or cannot be found within the state.’” Id. at 93 (citation omitted). But the statute also stated that “[t]he court may apportion the costs of the support of the child between the parents according to their respective means and responsibilities.” Id. Combining the clauses, the Appellate Division in Carter determined that section 414 did not create a condition precedent to the mother “becoming subject to contribution. . . .” Id.
69. Id. at 93–94. See also, e.g., Tessler v. Siegel, 399 N.Y.S.2d 218, 219 (App. Div. 1977) (Family Court Order that child support would rest solely on father and that mother’s means were irrelevant was reversed and remanded for a hearing on the mother’s financial status); Lea v. Lea, 399 N.Y.S.2d 219, 221 (App. Div. 1977) (agreeing with the Second Department’s determination in Carter regarding the support obligations of both the father and mother).
70. See Carter, 397 N.Y.S.2d at 94 (emphasis added); N.Y. Dom. Rel. Law § 240.