Fauser v. Fauser
Decision Date | 03 June 1966 |
Citation | 271 N.Y.S.2d 59,50 Misc.2d 601 |
Parties | . Russell J. FAUSER, Petitioner, v. Evelyn FAUSER, Respondent. Family Court, Nassau County |
Court | New York Family Court |
This proceeding was instituted by the petitioner-husband for the modification of a Mexican Judicial Decree because of an alleged change of circumstances.
Initially, in an action for separation in the Supreme Court of Nassau County, Mr. Justice Frank A. Gulotta made an order dated January 11th, 1965, directing the petitioner-husband to pay $35.00 per week for the support and maintenance of two children of the parties, RUSSELL, JR. and CHRISTINE. Said Order specifically decreed no support for the oldest child, JANET, due to her emancipation. Thereafter the petitioner-husband instituted an action for divorce in the Third Civil Court, District of Bravos, Chihuahua, Mexico and obtained a decree on May 28, 1965, which decree 'approved and incorporated by reference' the said order of Mr. Justice Gulotta which 'is not merged herein but shall survive the decree'. In addition thereto the petitioner-husband agreed to pay $5.00 more per week for the support and maintenance of the said two infant children, which made the total payment $40,00 per week.
The petitioner-husband comes before this Court to modify said Mexican Decree claiming that his son RUSSELL J. FAUSER, JR., age 17 years, has become emancipated, having enlisted in the United States Marine Corps in December, 1965 with the consent of both parents and is now stationed at Parris Island, South Carolina.
The waging of armed conflict, whether declared or undeclared, and the voluntary induction of military conscription of our infant sons or daughters, pose the question of whether their entry into the armed services is tantamount to emancipation. This question is not novel since it has been answered during our two Great Wars and now comes to the forefront because of the Viet Nam 'conflict'.
.
'What constitutes emancipation is a question of law, but whether there has been an emancipation is ordinarily a question of fact'.
. (Sections 431 and 432, DOMESTIC RELATIONS, 15 N.Y. JURISPRUDENCE)
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