Pickering v. Pickering , 58 A.D.2d 1039 ( 1977 )

Order unanimously affirmed, without costs. Memorandum: Petitioner appeals from an order denying his motion to terminate an order directing him to support his wife and five children. He alleges that the order is invalid because the parties are living together and, conversely, that it is invalid because his wife has abandoned him. A man has a continuing obligation to support his wife and children according to his means (Family Ct Act, §§ 412, 413) and in the absence of a pending matrimonial action, Family Court has exclusive jurisdiction of proceedings to compel support payments (Family Ct Act, § 411). The court may grant a support order when the parties are living together or apart, unless the wife has forfeited her right to support by abandoning her husband (see Levy v Levy, 22 AD2d 794). Petitioner asserted at oral argument that his wife had abandoned him and the children, but there is no evidence in the record that she has, and Family Court properly denied the motion to terminate support payments. We have considered the other points raised by petitioner and find them without merit. (Appeal from order of Erie County Family Court—support.) Present—Simons, J. P., Dillon, Hancock and Goldman, JJ.