107 Misc. 58 | N.Y. Sup. Ct. | 1919
The questions in this case arise upon a habeas corpus proceeding to determine the right of the
On January twenty-fifth last past the relator wired deponent from Boston that he was very sick and to come at once. She immediately left Syracuse and went to Boston and found that he was not seriously ill. They returned to Syracuse on the twenty-seventh of January, occupying the same berth from Boston to Syracuse, went to the house of deponent’s father where she resides and the relator remained there during the twenty-eighth until the twenty-ninth, occupying the same room at night as husband and wife, and on the thirty-first of January the relator commenced these proceedings.
The relator bases his right to the custody of the child not only upon his parental relation but upon a judgment or order made by the Probate Court in the state of Massachusetts, which his attorney with commendable earnestness insists is res adjudicata. The Massachusetts Statute (R. L. Mass., chap. 153, § 37), which gives the Probate Court of that State jurisdiction, reads as follows: “ If the parents of minor children
Chapter 152 “ Of divorce ” of the Revised Laws of . Massachusetts provides with other matters in relation to the care and support of children as follows:
“ Section 25. Upon a decree of divorce, or upon petition at any time after such decree, the court may make such decree as it considers expedient relative to the care, custody and maintenance of the minor children of the parties, and may determine with which of the parents the children or any of them shall remain; and afterward may from time to time, upon the petition of either parent, revise and alter such decree or make a new decree, as the circumstances of the parents and the benefit of the children may require.”
“ Section 28. In making an order or decree relative to the custody of children pending a controversy between their parents, or relative to their final possession, the rights of the parents shall, in the absence of misconduct, be held to be equal, and the happiness and welfare of the children shall determine their custody or possession.”
On the 28th of December, 1917, the relator presented a petition to the Probate Court in and for the county of Middlesex, Mass., asking that he should be awarded the custody and possession of the said child and stated in the petition that he and the defendant are living apart from each other.
On the 11th day of June, 1918, the following order was made by said court after reciting the issuing of
" It is ordered that the said Yirgilo Multer have custody and possession of said minor child until the further order of the Court, and that the said Blossom Multer shall have the privilege of visiting and seeing such minor child during said reasonable periods of time, and also having such child in her custody within the Commonwealth not less than two days in each month. George F. Lawton,
“ Judge of the Prohate Court ”
It is the contention of the relator that the aforesaid order is of that character, that it is within the “ full faith and credit ” requirement of the United States Constitution, article 4, section 1, and is conclusive of the rights of the parents.
It is contended by the defendant that the order of the Probate Court of the state of Massachusetts was simply interlocutory, an order rather than a final decree; that the order made by the Probate Court if it ever had any force or effect is no longer operative because it was based upon the claim of the relator that the relator and defendant were living apart, and that by his subsequent conduct, the parties having become reconciled and lived together, the conditions under which the order was made in the Probate Court were changed and the order is no longer in force or operative.
No question becomes res adjudicata until it is settled by a final judgment. The doctrine does not apply to an interlocutory order. See Freeman Judg. (1st ed.) §§ 251, 325; Riggs v. Pursell, 74 N. Y. 370-378; Brinkley v. Brinkley, 50 id. 184; Munn v. Cook, 8 N. Y. Supp. 698.
I am convinced that the defendant’s contention is
Section 25, Revised Laws of Massachusetts, supra', provides that the court may make such decree as it deems expedient relative to the care, custody and maintenance of the minor children of the parties, “ and may determine with which of the parents the children or any of them shall remain; and afterward may from time to time, upon the petition of either parent, revise and alter such decree or make a new decree, as the circumstances of the parents and the benefit of the children may require. ’ ’ It thus appears that the Probate Court was without power to make a final decree which would for all time fix the status of the child. Suppose- that either of these parties had brought an action for an absolute divorce in a court in Massachusetts having jurisdiction of the parties and the subject matter of the action, can it be contended for a moment that upon a final decree in said court that it would be bound by the order made in the Probate Court, especially if the court having jurisdiction in the supposed case should find that the facts were either entirely different, or had substantially changed from the time that the order was made in the Probate Court? The burden of proof is upon the party claiming an estoppel by a former judgment to show clearly that the fact in issue was determined in the former action. Zoeller v. Riley, 100 N. Y. 102.
In the case of People ex rel. Ludde.n v. Winston, 34 Misc. Rep. 21; affd., 61 App. Div. 614, cited by the counsel for the relator the judge states: “ To a certain extent at least the order of the Court of Chancery of New Jersey is to be regarded as an adjudication as
The case of Lynde v. Lynde, 162 N. Y. 405, is instructive in this connection. This was an action brought to recover alimony awarded to the plaintiff by a decree of the Court of Chancery in the state of New Jersey, in which it was held that the courts of this state would enforce the New Jersey decree and give it full credit and effect as a judicial debt of record against the defendant for the amount fixed at the time of the rendition, but would not attempt to enforce such foreign decree for the payment of alimony which
In the judgment rendered by the New Jersey court there was a final determination as to the right to and the amount of alimony and yet because the continuance of this provision rested in the discretion of the trial court to be determined according to the varying conditions and circumstances of the parties the courts of this state, as expressed in the above citation, refused to give it force and effect within the full faith and credit clause of the United States Constitution. It seems to me that the principles of this case apply with marked emphasis to the varying conditions and circumstances which may determine the right to the custody of a child.
The decision in the Lynde case was made in 1900; in 1904, chapter 318, section 1772 of the Code of Civil Procedure was amended presumably to meet the decision in that case. See opinion of Miller, J., in Moore v. Moore, 143 App. Div. 428-431. But such amendment, while it enlarges the power of the courts in this state to enforce a foreign decree in a divorce action in no way interferes with the principles of the Lynde case as to matters not covered by statute.
Apart from any rights which the petitioner may have
The writ denied with costs to the defendant against the relator pursuant to the provisions of Code of Civil Procedure, section 3240. See People ex rel. Curtis v. Kidney, 225 N. Y. 299.
Ordered accordingly.