265 A.D. 583 | N.Y. App. Div. | 1943
The parties were married May 27, 1926, in the State of California. For a short time thereafter they resided in Hew York State and then returned to California and resided there until October, 1927, when they separated. The plaintiff remained in California and defendant returned to Hew York where they have respectively resided ever since. On June 17, 1927, a daughter was born to them in California and
“ Any State will enforce through its courts the duty to pay for necessaries of life furnished to a * * * minor child imposed by (a) the State of the domicil of the person upon whom the duty is imposed * * (Restatement, Conflict of Laws, § 459.) Comment in the Restatement on this section says: “ The courts of any State will enforce the duty to pay for necessaries furnished a husband, wife or minor child provided the State whose law imposes the duty has legislative jurisdiction over the person upon whom the duty is imposed. A person is subject to the legislative jurisdiction of the State of his domicil * * *. Therefore, if by the law of the domicil of a person, he is required to pay for necessaries furnished to members of his family in that or any other State, such duty may be enforced in all States. ’ ’ Reason supports the foregoing rule and comment and so far as these questions have arisen in our State they are in accord with our own authorities. Laumeier v. Laumeier (237 N. Y. 357) is in point. Plaintiff there obtained a divorce under a decree which contained no direction as to custody of the children or their support as it was then believed that there were none. A child was born to plaintiff after the divorce and she later moved to New York and maintained the child here. She
Here we have a situation in which the defendant under the law of his domicil is liable to plaintiff for the support of his child for at least the past six years. Nothing in the decree of divorce absolved him from that responsibility for the court specifically reserved the right to compel him to pay plaintiff for such support should it later obtain jurisdiction over him. Consequently he may not now be heard to argue that the law of California applied. A New York father is none the less liable for necessaries furnished his minor child because such necessaries were furnished in another State which had neither legislative nor judicial jurisdiction over him.
Under the California statutes the parent who has the care and custody of the children is primarily liable for their support (California Civil Code, § 196), and one parent is not bound to compensate the other for the voluntary support of the child without an agreement therefor. (California Civil Code, § 208.) In an action for a divorce the court may make such order for the support of the children as it deems proper. (California Civil Code, § 138.) Here, however, no such order has been made because of lack of personal jurisdiction over the defendant. Nor did that State have legislative jurisdiction over him. Plaintiff is seeking to apply the New York law here and in our view defendant is subject to it because of his domicil here. Were these all the issues the order might be affirmed. But the defendant has pleaded defenses which, under the New York cases, may defeat the action if they can be established. We must assume that these allegations are controverted. They raise issues which remain to be tried. The motion papers are silent with respect to them and show no facts upon which a holding might be predicated that these defenses are without merit. I refer to the allegations of the second defense, viz., that plaintiff supported the child without any expectation of reimbursement, which may
The order should be reversed upon the law and facts without costs and an order granted denying each motion for summary judgment, without costs.
Hill, P. J., Ceapsee, Heffebetaet and Schehck, JJ., concur.
• Order reversed on the law and facts without costs and order granted denying each motion for summary judgment, without costs.