Aberlin v. Aberlin

• Decision Date: 09 April 1957
• Citation: 161 N.Y.S.2d 305,3 A.D.2d 417
• Parties: Selma D. ABERLIN, mother of 0/b/0 Dorothy G. Aberlin, Petitioner-Respondent, v. Isadore J. ABERLIN, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 305

161 N.Y.S.2d 305

3 A.D.2d 417

Selma D. ABERLIN, mother of 0/b/0 Dorothy G. Aberlin Petitioner-Respondent, v. Isadore J. ABERLIN, Respondent-Appellant.

Supreme Court, Appellate Division, First Department.

April 9, 1957.

Dora Aberlin, New York City, for appellant.

Alfred Weinstein, New York City, of counsel (Seymour B. Quel, New York City, on the brief; Peter Campbell Brown, Corporation Counsel, New York City, attorney), for petitioner-respondent.

Before BREITEL, J. P., and BOTEIN, RABIN, VALENTE and McNALLY, JJ.

BREITEL, Justice Presiding.

This proceeding arises under the Uniform Support of Dependents Law, L.1949, c. 807, as last amended by L.1956, c. 150; 65 McKinney's Unconsol.Laws, § 2111 et seq.

Respondent father, in these statutory proceedings, appeals from an order, denominated a temporary order, requiring him to pay $25 per week for the support of his now twelve-year-old daughter by his divorced wife. He also appeals from the order denying his motion to vacate the so-called 'temporary' order.

The proceedings were instituted in Massachusetts by the mother, one time an inmate of a State mental institution in Massachusetts, to obtain support for the child, who resides with the mother's sister and brother-in-law, residents of Massachusetts. A divorce decree, obtained in Massachusetts by the mother, awarded the custody of the child to the mother.

The order granting support in these proceedings was made before the completion of interrogatories, provided for in the statute, and for which respondent father had applied. The order was so granted and described as temporary by the court, because of the delay consequent to the many questions raised in these proceedings involving the validity of the Massachusetts decree of divorce awarding custody to the mother and the lawfulness of the custody of the child presently with its aunt and uncle in Massachusetts. Indeed, there have been several appeals and bitter litigation arising out of the complex of facts. See, e. g., Matter of Anonymous, 2 A.D.2d 674, 153 N.Y.S.2d 559. The dispute is not over the duty or quantum of support, but on the right to custody. It is claimed, for example, that the child was spirited away from the custody of the father in New York by the brother-in-law. A grave question is also raised as to the present mental competency of the mother. In addition, the Massachusetts decree awarding custody has been relitigated in Massachusetts by the father, but unsuccessfully. With these questions this court has no concern, except insofar as they explain the unusual delay in bringing these proceedings to a head, and in providing the background for the court's action below in granting the order for support on a 'temporary' basis.

The reason for the incompletion of the interrogatories is the alleged refusal of the mother to answer and return the interrogatories.

The order should be reversed and the proceedings remanded to the Domestic Relations Court for further action.

The Uniform Support of Dependents Law is of an unusual character in our jurisprudence. It provides a special statutory procedure which dispenses with the usual hearing with physical confrontation of parties and witnesses. Instead, the proceedings are conducted by pleadings exchanged between comparable courts in two States, and by the exchange of interrogatories for the purpose of eliciting evidence. The constitutionality of the statute has been established in the State's highest court. Landes v. Landes, 1 N.Y.2d 358, 153 N.Y.S.2d 14.

The first question now involved is the appealability of the orders from which respondent brings this appeal. Section 58 of the New York City Domestic Relations Court Act provides for appeal only from final orders. Section 6-a of the Uniform Support of Dependents Law, McKinney's Unconsol.Laws, § 2116-a, grants to a respondent in the statutory proceedings the same right of appeal as in civil proceedings or actions brought in the same court. Consequently, only if the orders challenged here are final does appeal lie to this court.

While the first order in question, granting support, is denominated as 'temporary', the description is not controlling. Actually, the description of the order as 'temporary' arises only because of the use of the symbol 'T', representing a single adjective, endorsed on the back of the papers, in the manner of the informal procedure which is used in the Domestic Relations Court. The effect of the order was to grant the final relief which is the only relief available in a statutory proceeding. What was temporary about it was that the court, because the proceedings had not been completed, wished to indicate that the order was subject to future vacatur or modification. That an order is subject to modification or vacatur does not, alone, make it nonfinal. If the court wished to enter a temporary order, in the sense of an intermediate support order, nevertheless, it had no power to do so under the Uniform Support of Dependents Law. The fact that under section 129 of the Domestic Relations Court Act the court has power to grant temporary orders for support pending final determination, is of no avail in the statutory proceedings. It is quite clear from a reading of section 129 that it applies to actions and proceedings provided for in the Domestic Relations Court Act. See, also, 'Vincenza' v. 'Vincenza', 197 Misc. 1027, at page 1032, 98 N.Y.S.2d 470, at page 476. There is no similar provision in the Uniform Support of Dependents Law. Moreover, as a matter of policy, the distinction has cogent application. The unusual way in which the statutory proceedings are conducted means that the proof and opportunity for proof are quite unilateral until the interrogatories have been completed. Accordingly, whichever view one takes of the order of the court below, the sound approach is to treat it as final, and, therefore, reviewable by this court.

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