D. v. O.

• Decision Date: 25 February 1974
• Citation: 352 N.Y.S.2d 842,77 Misc.2d 230
• Court: New York Family Court
• Parties: . Audrey D., mother, o/b/o Jamie O., Petitioner, v. Michael O., Respondent. * Family Court, New York City, New York County

Page 842

352 N.Y.S.2d 842

77 Misc.2d 230

In the Matter of a Proceeding for Support Under Article 4 of the Family Court Act Audrey D., mother, o/b/o Jamie O., Petitioner, v. Michael O., Respondent. ^* Family Court, New York City, New York County.

Feb. 25, 1974.

Kass, Goodkind, Wechsler & Gerstein, New York City, for petitioner.

Seymour Schwartz, New York City, for respondent.

NANETTE DEMBITZ, Judge:

This is a proceeding under Article 4 of the Family Court Act for payment of child support pursuant to a Mexican divorce decree that incorporated a separation agreement. Conceding that he has stopped making the payments specified in the agreement, respondent seeks to justify non-payment on the basis of petitioner's breach of various provisions of the agreement. Petitioner contends that the doctrine of dependent conditions on which respondent relies, only governs in proceedings to enforce an agreement, and is inapplicable in proceedings like the instant one to enforce a decree incorporating an agreement.

Dependency of Conditions in Agreements and Decrees

The distinction urged by petitioner between suits on agreements and on decrees in regard to dependency of conditions, was unanimously rejected in Callender v. Callender, 37 A.D.2d 360, 325 N.Y.S.2d 420 (1st Dept.) in which the Court reversed a lower court ruling that apparently was based on the alleged distinction. Noting that the agreement therein provided for its survival despite its incorporation in a decree (as is likewise true of the agreement at bar), the Court pointed out that entry of a decree cannot change the terms of an agreement (37 A.D.2d at p. 362, 325 N.Y.S.2d at pp. 421--422). As to the illogic of the view that a decree embodying an agreement can be interpreted differently from the agreement, cf. Greene v. Greene, 31 Misc.2d 1009, 1010, 221 N.Y.S.2d 236, 238 (Sup.Ct., Monroe Cty.). And see Goldner v. Goldner, 284 App.Div. 961, 135 N.Y.S.2d 337 (1st Dept.) and Harris v. Harris, 197 App.Div. 646, 189 N.Y.S. 215 (st Dept.) 646, 189 N.Y.S. 215 (1st Dept.) and child support provisions in separation decrees.

While a decree incorporating an agreement must therefore receive the same construction as the agreement, the courts must modify a decree if the child's welfare so requires. Both aspects of this principle were expressed in Sawyer v. Larkin, 37 A.D.2d 929, 326 N.Y.S.2d 270 (1st Dept.), decided after Callender, which was again a suit on a Mexican decree incorporating a separation agreement. ¹ Modification of a decree in the interests of the child, regardless of the agreement, is a logical corollary of the principle that the child, not being a party to the separation agreement, is not bound thereby, and has a common-law and statutory right to parental support and to judicial protection of his welfare. See Moat v. Moat, 27 A.D.2d 895, 896, 277 N.Y.S.2d 921, 923 (3rd Dept.); Kulok v. Kulok, 20 A.D.2d 568, 569, 245 N.Y.S.2d 859, 860 (2nd Dept.); Van Dyke v. Van Dyke, 278 App.Div. 446, 448--449, 106 N.Y.S.2d 237, 239--241 (3rd Dept.); Fam. Ct. Act, sec. 461; Dom. Rels. Law, sec. 240; Almandares v. Almandares, 186 Misc. 667, 671, 60 N.Y.S.2d 164, 168--169 (Dom. Rels. Ct Kings Cty.); 2 Foster and Freed, Law and the Family (1966) Section 28.28.

While Altschuler v. Altschuler, 248 App.Div. 768, 289 N.Y.S. 59 (2nd Dept.) is often cited for its dictum that in regard to the dependency of conditions 'a judicial decree . . . is distinguishable from . . . contracts of separation' (248 App.Div. at p. 768, 289 N.Y.S. at p. 60), ² in fact the decision seems consistent with the Callender-Larkin rulings discussed above. Altschuler presented the issue of whether a divorce decree providing for child support and visitation should be modified to strike the support provision because the mother had for justifiable reasons removed the children from New York to California. The court's continued enforcement of the support obligation seems based on the welfare of the children as 'the paramount consideration' (248 App.Div. at p. 768, 289 N.Y.S. at p. 60) rather than on a necessary independence between the support and visitation provisions of a decree. ³

In the instant case, there is no indication that the welfare of the child requires any deviation from the enforcement of the decree in full conformity with the agreement incorporated therein. Thus, under the Callender and Larkin rulings, this Court's function is to determine the proper interpretation of such agreement, and thus of the decree, with regard to the dependency of its conditions.

Petitioner's Alleged Violations of Agreement and Decree

1. Visitation--Respondent depends his termination of the monthly child support payments required by the agreement on the ground that the petitioner interfered with and deprived him of agreed visitation. The Court concurs with respondent that visitation provisions go to the essence of an agreement for child support and that visitation and support are generally therefore dependent conditions (see Duryea v. Bliven, 122 N.Y. 567, 570--571, 25 N.E. 908, 909; Borax v. Borax, 4 N.Y.2d 113, 116, 172 N.Y.S.2d 805, 807--808, 149 N.E.2d 326, 327--328; Callender, Supra; Fleischer v. Fleischer, 25 App.Div.2d 901, 269 N.Y.S.2d 270, 3rd Dept.). However, appraising the conflicting testimony in this lengthy trial with the aid of the opportunity to observe the witnesses, the Court finds that there was no violation by petitioner of the visitation provision.

Respondent's satisfactory visitation with the child deteriorated after his remarriage. While it appears that petitioner was less than cordial to respondent's second wife and to his and her relatives, the evidence shows that the child's attempt to condition visitation on seeing respondent alone rather than in company with his second wife, was the child's decision rather than petitioner's. The breakdown of visitation appears to have been primarily due to respondent's failure to dedicate the amount of time, effort, and patience required to overcome psychological problems attendant on his remarriage.

2. Use of Step-father's Surname--Respondent urges that the child's use for approximately the past five years of her step-father's surname, establishes petitioner's violation of the provision of the agreement that each party refrain from hampering the development of the child's love for the other. Enforcement of such a broad and vague provision presents difficulties (compare Borax, 4 N.Y.2d at p. 116, 172 N.Y.S.2d at pp. 807--808, 149 N.E.2d at pp. 327--328). Nevertheless, a mother's stimulation of a child's abandonment of his father's name, symbolizes a fundamental interference with the father-child relationship; and such conduct might therefore be deemed a breach of a condition of the support obligation. (See Warshaw v. Ginsburg, 245 Cal.App.2d 513, 53 Cal.Rptr. 911, 1966.) For, the father's right to have his child use his name 'may not be lightly brushed aside.' ⁴ However, use of the mother's and step-father's surname may vitally serve the child's welfare (see Niesen v. Niesen, 38 Wis.2d 599, 157 N.W.2d 660 (1968); Application of Shipley, 26 Misc.2d 204, 205 N.Y.S.2d 581 (Sup.Ct., Nassau)); in that event, even if there were a specific provision of the agreement against the child's change of name, its observance would not constitute a condition for enforcement of the support provisions of the decree (see discussion of Larkin principle, Supra p. 845).

In the case at bar the evidence shows that the child herself, despite discouragement from petitioner, insisted on using her step-father's surname, her psychological need to do so arising from her estrangement from respondent. Under these circumstances the use of the name does not vitiate respondent's decreed support obligation.

3. Medical Consultation Provision--Petitioner concededly arranged for plastic surgery on the child's nose when she was a teenager and keenly desirous of it, without consulting respondent. He argues that she thus violated the provisions of the agreement that respondent (who is a pediatrician) arrange for 'all medical, dental hospitalization and other similar services' for the child and that doctors of his choice determine the child's need for treatment; and he contends that this violation excuses his breach of his monthly support obligation. While this nasal surgery, though for a cosmetic rather than medical purpose, should be deemed within the general intent of the medical supervision provision, the Court concludes that this provision and the monthly support provision of the agreement are independent. Whether provisions are dependent must be judged by their substantiality in the light of the entire agreement and by considerations of justice and proportion. Jacob & Youngs v. Kent, 230 N.Y. 239, 242--243, 129 N.E. 889, 890--891 (Cardozo, J.); Borax v. Borax, 4 N.Y.2d 113, 115--116, 172 N.Y.S.2d 805, 806--808, 149 N.E.2d 326, 327--328; Walker v. Walker, 23 A.D.2d 764, 765, 258 N.Y.S.2d 585, 586--587 (2nd Dept.); Seligmann v. Mandel, 16 Misc.2d 1026, 1029, 185 N.Y.S.2d 484, 487--488 (Sup.Ct., N.Y.).

4. College Consultation Provision--Finally, respondent urges that petitioner violated the provision of the agreement that she 'confer with a view to arriving at a choice of collage' with respondent, and that his monthly support as well as his payment of college expenses was conditioned on the college consultation provision. Evaluating the lengthy and conflicting testimony, the Court finds that petitioner failed to 'attempt to carry it out in good faith' the college consultation provision (see Duryea v. Bliven, 122 N.Y. 567, 571, 25 N.E. 908, 909). That petitioner may have had to communicate with respondent in writing instead of orally because of respondent's attitude towards her or that respondent would have urged consideration of the relative expense of various colleges, does not justify her failure. However, the college provision deals with a special item of support for a...