Martin v. Martin

283 A.D. 721 | N.Y. App. Div. | 1954

Order modifying a judgment of separation in respect of religious training and visitation, entered after a hearing before an Official Beferee, affirmed, without costs. Ho opinion. Adel, Acting P. J., Schmidt and Beldock, JJ., concur; Wenzel and Murphy, JJ., dissent and vote to reverse the order and to deny the motion to modify the judgment, with the following memorandum: Appellant and respondent entered into an antenuptial agreement that all children of their union were to be brought up in the Boman Catholic faith. The marriage was solemnized in 1938, and in 1940 a son was born and baptized as a Catholic. The wife, contrary to her agreement and her husband’s desires, sent the child to a Christian Science Sunday school at an early age. The husband and wife separated in 1947. In 1949, in an annulment action brought by the husband, based on the breach of the antenuptial agreement, the wife prevailed on her counterclaim for a separation. The judgment, however, provided that the child be brought up in the Eoman Catholic religion in accordance with the agreement of the parties. The wife has now asked that this judgment be modified so that the boy shall be permitted to attend the public schools and receive instruction in Christian Science. The modification of the judgment has been granted in that respect. In the formative years of a child’s life it must be guided in its religious and secular education by its parents until its mind is sufficiently mature to make its own decisions. That degree of maturity is not reached at the age of twelve. If, as the mother claims, the child is now confused, the fault is entirely hers. She has continuously violated the aforesaid provision in the agreement and the judgment. She should be required to fulfill her promise and the earlier direction of the court. The tenets of all religions as well as the law require the observance of a solemn obligation.