25 A.D.2d 672 | N.Y. App. Div. | 1966
In an action for divorce, defendant wife appeals from an interlocutory judgment of the Supreme Court, Westchester County, entered September 16, 1965 in favor of plaintiff husband, after a nonjury trial. Judgment affirmed, without costs. We are of the opinion that testimony of the husband, admitted and considered solely on the question of the custody of the children of the parties, was not incompetent under CPLR 4502 (subd. [a]), although such testimony was not confined to the particular excepted matters there enumerated and tended to show that defendant was guilty of adultery. Custody is a question which must be decided in an action for divorce (Domestic Relations Law, § 240), but it is an issue separate and distinct from that of adultery. “In disposing of the custody of children, courts are not so ‘limited that they may not depart from strict adversary concepts’ in certain respects” (Kesseler v. Kesseler, 10 N Y 2d 445, 452); and it has been stated that the “ investigation for the purpose of determining the question of custody of children is not limited to evidence admissible in a divorce suit between their parents ” (2 Nelson, Divorce & Annulment [2d ed., 1961 rev.], § 15.47). Since the husband’s testimony was competent on the question of custody, it is our opinion that it was admissible on that issue, even though it was incompetent on the issue of adultery (cf. Woodrick v. Woodrick, 141 N. Y. 457, 462). If it be assumed that the testimony was inadmissible, it is our opinion that reversal would not be required, as defendant’s adultery