193 Misc. 890 | N.Y. Fam. Ct. | 1948
At the conclusion of an extended hearing on October 11, 1948, attended by petitioner in person and her brother, B. S., and by respondent’s brother-in-law, A. 0., as attorney in fact, decision was reserved pending a restudy of the voluminous file and the preparation of this memorandum explanatory of my final conclusion that the proceeding should be now marked “ Reserved Generally ” under Family Court Rule XXIV (Bender’s Court Rules [1st ed.], p. 371), which provides (insofar as pertinent): „
“(a) There may be marked 1 Reserved Generally ’ any proceeding in which: * * *
“(2) As the result of petitioner’s * * * non-action, or action (including recourse to the Supreme Court of the State of New York or other forum of competent jurisdiction), it appears to the Court that petitioner is no longer * * * entitled to continue it;
“ (3) Respondent has instituted a matrimonial action in the Supreme Court of the State of New York or other forum of competent jurisdiction and petitioner has appeared in that action * * *;
“(5) On * * * the Court’s own motion, the Court is satisfied that, for reasons beyond the control of any party and not due to bad faith, respondent will be unable for a substantial period to contribute support; * * *
*892 “ (b) Each proceeding within any foregoing category may be marked ‘ Eeserved Generally ’ with the intent that it continue dormant until the Court, on material change of circumstances or for other just cause, permits the proceeding to be prosecuted by restoring it to a Day Calendar at any time on proper request of a party or on the Court’s own motion.
“(c) The effect of marking a proceeding ‘ Eeserved Generally ’ shall be to vacate any support order, outstanding process, order of protection, or provision for visitation, and to terminate probation; also to cancel arrears, when, if and as expressly directed.”
Today’s disposition is based upon the following facts and applicable law.
This proceeding was begun by the wife-mother’s filing on October 13, 1942, a petition for support which alleged that the parties had duly intermarried on October 29, 1927, in New York City, are the parents of a child, “ Eoberta ” (born October 22, 1935) and that since about July, 1941, the respondent husband-father had refused and neglected to provide fair and reasonable support according to his means and earning capacity.
On the day when the petition was filed, the petitioner (represented by an assistant corporation counsel of the city of New York) and the respondent (represented by personal attorney) both executed a court Form F-6 agreement, pursuant to section 118 of the New York City Domestic Eelations Court Act, for a consent order directing the deposit in this court of $90 each month, beginning November 1, 1942, until further order, toward the support of the wife and child. Such agreement also provided: “ Eespondent to have right of visitation for Sunday from 11<3 5 P. M. Eespondent to call for child at her home, and is free to take her out by himself ”. However, that visitation provision was not expressly incorporated in the support order nor in any order of protection (see “ Homer ” v. “ Homer ”, 184 Misc. 989, affd. sub nom. Matter of Hartstein v. Hartstein, 269 App. Div. 770).
Simultaneously, on October 13, 1942, there was entered, also on consent, a companion order, pursuant to subdivision 2 of section 132 of the Domestic Eelations Court Act, authorizing and directing the appropriate municipal official to deduct, and send to this court, said monthly sums of $90 out of respondent’s then monthly compensation of $204.32 as teacher in a New York City high school.
Those two October 13, 1942, orders were entered on consent, and after only a fro forma hearing. So, neither then nor at
Moreover, from an inspection of the indorsements on the petition and the probation bureau chronological record it appears that respondent was personally never again present before the court after his single, initial attendance on October 13, 1942; that although petitioner was present on January 24, 1945, February 7,1945, March 7,1945, March 23, 1948 and October 11, 1948, neither party attended or was represented at several other scheduled hearings; that in no instance were both parties present together since October 13, 1942; but that they are prolific and emotional letter writers. It is therefore appropriate to bear in mind that although the Family Court Division of Domestic Relations Court of the City of New York is designed for socialized treatment of family legal problems and constantly strives for a sympathetic and humane approach to broken home problems and to utilize all available medical implementation and public and private social agency facilities, nevertheless it is a court, where an official stenographer takes down the minutes of every hearing, subject to the right of appeal, upon a printed record, to the Appellate Division of the Supreme Court, and that all Family Court Division, as well as Children’s Court Division, proceedings are governed by the guiding principle enunciated by the New York Court of Appeals in an oft-quoted discussion of the functions and procedure of Children’s Courts in this State, namely:
“ The customary rules of evidence shown by long experience as essential to getting at the truth with reasonable certainty in civil trials must be adhered to. The finding of fact must rest on the preponderance of evidence adduced under those rules. Hearsay, opinion, gossip, bias, prejudice, trends ■ of hostile neighborhood feeling, the hopes and fears of social workers, are all sources of error and have no more place in Children’s Courts than in any other court.” (People v. Lewis, 260 N. Y. 171, 178. See Anonymous v. Anonymous, 24 N. Y. S. 2d 613, 614-615.)
Still another factor against a present continuance of this proceeding is that since the initial October 11, 1942, hearing neither party has been represented by an attorney at law but has presumed on the court’s indulgence to speak through laymen attorneys in fact, unfamiliar with legal procedure and in this case further handicapped by subjectivity as close relatives animated by feelings of partisan hostility.
The afore-mentioned October 13, 1942, consent orders had been preceded by a considerable period of voluntary separation and informal financial arrangements. Seemingly, the incompatibility of two high-strung persons was aggravated by respondent’s ill-health. Already in January, 1934, he was invalided by a hemoptysis; and although he resumed teaching again in September, 1936, he had a breakdown in July, 1937, and did not return to his job until February, 1939.
If the marital relations had not then already deteriorated, the final onset of tuberculosis and the resultant impairment of respondent’s earning capacity and his greater need for personal care and sympathy might have brought the spouses closer together. Increased devotion and deepened love have been known to follow like afflictions. But in this instance respondent’s illness, instead, became the final chapter of years of mounting mutual unhappiness, so that the parties’ home had been irretrievably broken long before recourse to this court. The aforementioned October 13, 1942, orders, therefore, served only to implement a stipulated apportionment of respondent’s then earnings of $204.32 per month.
Subsequent events indicate the wife’s refusal, or perhaps emotional inability, to accept the fact of respondent’s serious illness and his consequent incapacity to contribute support in the original amount.
(Next follow, but here omitted from this published version, details of respondent’s serious illness and consequent court directions between January 24, 1945, and October 11, 1948.)
At the October 11,1948, hearing the following additional facts were proved by the testimony and admissions of petitioner and her brother:
(a) Petitioner is employed as a school teacher in an up-State community, away from New York City, at a gross salary of $250 a month or a net of approximately $219.
(b) Petitioner is no longer a resident of New York City.
Her current job is in another part of this State; she trained at a State teachers’ college in another State, and was there registered as a resident of that State.
(c) The child “ Roberta ” has been at an undisclosed school abroad for upwards of a year.
(d) Respondent has been living in X Town, Colorado, continuously since February, 1945.
(e) There is now pending a divorce action instituted by respondent in Colorado as a resident of that State. Petitioner has appeared in that action by a Colorado attorney, is contesting it, and also negotiating therein issues of custody, property and support.
It is established by recent decisions of the United States Supreme Court that any judgment entered in such Colorado divorce action would be entitled to full faith and credit throughout the United States. (Sherrer v. Sherrer, 334 U. S. 343; Coe v. Coe, 334 U. S. 378.)
Per contra, an order of the Family Court Division of Domestic Relations Court is not so entitled nor would it be binding even upon the parties themselves in any subsequent litigation in the Supreme Court of the State of New York (see Loomis v. Loomis, 288 N. Y. 222; Reisman v. Reisman, 46 N. Y. S. 2d 335).
Thus, the Colorado court is the proper forum for determination of all current issues between the parties (including any duty of support); and both parties have now in legal effect elected that superseding forum in place of this local court of limited jurisdiction.
(f) The provisions in the October 22, 1942, agreement concerning visitation have not been performed; indeed, petitioner has concealed from respondent the child’s whereabouts and cut off communication between him and that daughter for several years.
If those visitation provisions had been embodied in a formal separation agreement, their violation would have precluded petitioner from maintaining a contract action against respondent to recover unpaid installments of support (Duryea v. Bliven, 122 N. Y. 567; Muth v. Wuest, 76 App. Div. 332; Matter of Noel, 173 Misc. 844). But that ruling is based on a doctrine of the
Moreover, no visitation directions were incorporated as a condition of the October 22, 1942, consent support order; and in any event respondent’s illness and residence in Colorado made such visitation impossible after February, 1945. But there is generally recognized the natural right of even a divorced parent to access to a child in the other parent’s custody. Such recognition derives from the concept that while “ The child at tender age is entitled to have such care, love and discipline as only a good and devoted mother can usually give ”, nevertheless, “ Meanwhile the father must not be excluded from a full opportunity to have such possession of his child as will enable him to impart to it what from the father enters into the child’s character, and to indulge the affection that a father feels and bestows, whereby the boy may grow up in knowledge and love of him.” (Ullman v. Ullman, 151 App. Div. 419, 424-425.)
Accordingly, petitioner’s overpossessiveness of “ Roberta ” and her dropping an iron curtain between the child and her sick father over the years constitute an additional reason for exercising discretion against continuance of the jurisdiction of this court in petitioner’s behalf.
(g) Respondent’s only income shown on the October 11, 1948, hearing was a total monthly income of $70;39, consisting of a disability payment from X Life Assurance Society ($20), an allowance from teacher’s retirement system of New York City ($44.39) and a subsidy of $6 from an Ex-Patients’ Home (for fares and supplementary lunches); and respondent claimed the following reasonable and necessary expenses totalling $53.50 per month: taxes on property in Pennsylvania, $1.50; fares, $5; lunches and supplementary meals, $22; newspaper, $1.50; phone, $1; postage, $1; tailor, $1; cleaners and supplementary laundry, $3; barber, $1.50; toilet articles, $2; stationary, $1; clothing, $5; books (school), $3; miscellaneous (including contributions), dues, $5; total, $53.50.
It since appears that the afore-mentioned $70.39 figure will presently rise to $123.72, in consequence of a part-time temporary job at $79.33 a month but stoppage meanwhile of the $20 disability insurance payment. However, under all the
Still another cogent reason is that there no longer exist the residential jurisdiction requirements prescribed in section 103 of the Domestic Relations Court Act. The October 22, 1942, orders were based on respondent’s then residence in New York City and his then employment as a local high school teacher. Such residence and employment have now ceased, and both wife and the child also are no longer in New York City. Upon an analogous state of facts Justice Panken terminated a Family Court support order in Fenelle v. Fenelle (183 Misc. 123). True, as a general rule jurisdiction once acquired is not defeated by subsequent events, even though they are of such character as would have prevented jurisdiction from attaching in the first instance. (15 C. J., Courts, § 135; 21 C. J. S., Courts, § 93, and cases cited.) But that rule is not inflexible, especially in respect of courts of limited jurisdiction. Thus, the New York Appellate Division, First Department, queried in Wagner v. Wagner (257 App. Div. 307, 308), whether the right to continue a Family Court support order exists when the beneficiary resides permanently outside the State of New York; and although in
For all the foregoing reasons, petitioner’s application to terminate the support order suspension directed by Justice Mabchisio on March 2, 1948, and again on March 23, 1948, is in all respects denied, and the proceeding is hereby marked “ Reserved Generally ” under Family Court Rule XXIV.
Justice Mabchisio did not fix or dispose of the arrears, if any, accrued at the time of the March 2, 1948, suspension. But it now appears that although there were on March 2,1948, book arrears of $598.88, voluntary subsequent deposits of $120 would reduce that book figure to $478.88; also, that such residue accrued since June, 1945, solely because, and to the extent of, the deficit between the amount of net salary earned by respondent and the $90 a month deductions under the October 22, 1942, order on his then salary. That is, petitioner collected $90 each month when that amount was available, even while there was left over for respondent little or nothing. Those book arrears therefore reflect a period when respondent had no other earnings and so no ability to contribute support; accordingly, they are hereby cancelled pursuant to subdivision (10) of section 92 of the Domestic Relations Court Act.
For completeness of discussion this memorandum will now comment on the rights and duties of the parties concerning “ Roberta ”. Unhappily, she has been deprived of a normal home and become a pawn in the hateful battle between her parents. The consequent damage is now largely irremediable. At the very least, however, petitioner should take affirmative steps to re-establish communication between respondent and the child, and in good faith carry out the recent assurances to that
“ However, a failure of provision for the maintenance and support of minor children in the divorce decree does not absolve the father from the duty to provide for them, for, while the decree of divorce dissolves the marital relations of the parties, it did not divorce the father from his child or dissolve his liabilities to it.” (9 Carmody on New York Pleading and Practice [2nd ed.], § 194, p. 293; citing Laumeier v. Laumeier, 237 N. Y. 357.)
Accord, Anonymous v. Anonymous (171 Misc. 644); White v. White (154 App. Div. 250); Pretzinger v. Pretzinger (45 Ohio St. 452); Schacht v. Schacht (187 Misc. 461).
In New York State the primary obligation for support of a minor child rests upon its father, regardless' of the earnings or other resources of the mother (De Brauwere v. De Brauwere, 203 N. Y. 460, supra). And the measure of such obligation is the child’s needs in relation to the father’s ability to provide and his station in life (see “ Johnston ” v. “ Johnston ”, 177 Misc. 618, 623; Prindle v. Dearborn, 161 Misc. 95, 99; Schacht v. Schacht, 187 Misc. 461, supra; cf. Garlock v. Garlock, 279 N. Y. 337, 340).
The net of the mass of decisions dealing with a variety of particular circumstances has been tersely summarized thus: “ The legal duty of a parent to support his minor children is affected by many considerations. His health, his means, his station in life, as well as similar considerations on the part of the child, have a bearing upon it. Although he is bound to furnish support while his legal obligation continues, if of
It is hoped that this detailed memorandum may be helpful in the plenary action litigation now pending in Colorado.
Notice shall be given to the parties pursuant to the subjoined direction.