Aberlin v. Zisman
| Citation | 244 F.2d 620 |
| Decision Date | 21 May 1957 |
| Docket Number | 5222.,No. 5218,5218 |
| Parties | Isadore ABERLIN, Plaintiff, Appellant, v. James ZISMAN et al., Defendants, Appellees (two cases). |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
Dora Aberlin, New York City, with whom Richard L. Wilder, Boston, Mass., was on the brief, for appellant.
James Zisman, Roxbury, Mass., pro se and for Lenore Zisman, appellees.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
This case arose out of an unfortunate family squabble. Federal jurisdiction was invoked on diversity of citizenship. The complaint charged that defendants, on April 1, 1955, committed a tort to the plaintiff under the law of New York in that defendants abducted plaintiff's minor daughter from his lawful custody in New York and transferred the girl without plaintiff's assent to Massachusetts. Plaintiff demanded judgment in the sum of $250,000. The district court left the case to the jury, which returned a verdict for defendants. On December 6, 1956, the district court entered judgment for defendants in accordance with the verdict. On December 14, 1956, plaintiff filed his motion for a new trial. The pendency of this motion, undisposed of, temporarily terminated the appealability of the judgment. See Rule 73(a), F.R.Civ.P., 28 U.S.C.A.; Denholm & McKay Co. v. Commissioner, 1 Cir., 1942, 132 F.2d 243, 247. See also R. F. C. v. Mouat, 9 Cir., 1950, 184 F.2d 44, 48. Therefore, plaintiff's notice of appeal from this judgment, filed December 17, 1956, was premature and a nullity, and this appeal (No. 5218) will have to be dismissed for lack of jurisdiction. On December 26, 1956, the district court entered an order denying plaintiff's motion for a new trial, and plaintiff filed a separate notice of appeal (No. 5222) from this order. Such an order is appealable, as we explained in Peterman v. Indian Motorcycle Co., 1954, 216 F.2d 289; and on such appeal appellant is free to assert any alleged errors which entered into and infected the judgment, the existence of which errors would make it an abuse of discretion for the district court to deny the motion for a new trial. The appeal in No. 5222 is thus properly before us.
Selma Aberlin, a resident of Massachusetts, was plaintiff's wife, and the girl, Dorothy Gail Aberlin, was born of that marriage. By decree of the Probate Court, County of Suffolk, Commonwealth of Massachusetts, entered May 15, 1953, Selma, the mother, was granted a divorce from her husband and was awarded custody of the minor child. The father was ordered by the decree to pay $25 weekly for the child's support. Subsequently, the father moved to New York and established his residence in that state. The mother, not being well and being on the verge of a nervous breakdown, asked the father to take care of the girl, and the child was physically transferred to New York City to live in an apartment occupied jointly by the father and by his sister Gertrude Aberlin. For a short time the mother, who had gone to New York, received treatment at the Bellevue Hospital. Later, at the instance of her sister Lenore A. Zisman and of her brother-in-law James Zisman, the latter two being the defendants herein, the mother was brought back to Massachusetts; and for a time the mother was legally committed to the Boston State Hospital.
While this commitment was outstanding, the Probate Court for Suffolk County on March 25, 1955, entered a decree awarding temporary custody of the minor child to her aunt Lenore Zisman. It is claimed that this decree was void for lack of notice to the father.
At any rate, armed with this decree defendant James Zisman journeyed to New York, found the little girl at school and persuaded her to accompany him back to the home of the two defendants in Stoughton, Mass., where she stayed for several months. There was no evidence that this removal was accomplished by the use of any force or fraud practiced upon the girl, who testified that she went willingly and that her life with her aunt and uncle was a happy one. On the other hand, it is clear that the father had no advance knowledge of this planned removal and did not give his consent thereto. Eventually the mother was released from commitment, and the Probate Court took appropriate action to restore the original provision of the divorce decree awarding legal custody to the mother.
It is claimed by appellant that, when the mother was committed to the Boston State Hospital, the divorced father, by the...
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Leonhard v. U.S.
...that Leonhard could not prevail on an abduction claim because he was not entitled to custody of the children. See, e. g., Aberlin v. Zisman, 244 F.2d 620 (1st Cir.) (action by non-custodian father for abduction against child's maternal aunt and uncle dismissed, applying New York law, where ......
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Sears v. Pauly, 5366
...judge on March 25, 1958 and thereupon the above notice of appeal from the judgment was filed by the defendant. In Aberlin v. Zisman, 1 Cir., 1957, 244 F.2d 620, certiorari denied 355 U.S. 857, 78 S.Ct. 84, 2 L.Ed.2d 63, we indicated that where a motion for a new trial was denied an appeal w......
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...818, 65 S.Ct. 437, 89 L.Ed. 650; cf. Continental Oil Co. v. United States, 1936, 299 U.S. 510, 57 S.Ct. 30, 81 L.Ed. 378; Aberlin v. Zisman, 1 Cir., 1957, 244 F.2d 620, certiorari denied 355 U.S. 857, 78 S.Ct. 84, 2 L.Ed.2d 63. As this Court stated in Healy v. Pennsylvania R. Co., 1950, 181......
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