Matthews v. Matthews ( 1961 )

Jurisdiction was acquired by the Children’s Court when respondent appeared upon this application by counsel and submitted an affidavit with respect to the merits. A party who argues a motion on the merits, even though he contemporaneously raises the question of jurisdiction over his person, has appeared generally despite his own characterization of his participation as one of a special appearance (Matter of Atterbury, 222 N. Y. 355, 362; 32nd St. Delicatessen v. Culinary Workers Union, 9 Misc 2d 69). Whether a college education is a necessary for Nancy in the light of respondent’s pecuniary ability, and whether her present support allowance is sufficient to sustain the cost of such education, constitute questions of fact for the Children’s Court to resolve in the first instance (International Text Book Co. v. Connelly, 206 N. Y. 188, 195; 16 N. Y. Jur., Domestic Relations, § 662, pp. 213-214). Nolan, P. J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.