Abreu v. Abreu

• Decision Date: 13 July 1965
• Citation: 261 N.Y.S.2d 687,46 Misc.2d 942
• Parties: . Gloria Dubois ABREU, a/k/a Gloria Dubois, Respondent. Family Court, Ulster County
• Court: New York Family Court

Page 687

261 N.Y.S.2d 687

46 Misc.2d 942

In the Matter of a Proceeding for Support Under Article 4 of the Family Court Act, Edward ABREU, Petitioner, v. Gloria Dubois ABREU, a/k/a Gloria Dubois, Respondent.

Family Court, Ulster County.

July 13, 1965.

Edward T. Feeney, Kingston, for petitioner.

Ernest Schirmer, Saugerties, for respondent.

HUGH ROSS ELWYN, Judge:

The petitioner-husband and the respondent-wife obtained an Alabama divorce decree which confirmed a separation agreement between the parties, but provided that the agreement was not merged in the decree but should in all respects survive the decree. The separation agreement provided for support payments for a minor daughter of $10.00 per week, gave custody of the child to the wife and accorded the husband certain specified visitation privileges.

The husband, claiming that the wife had wrongfully failed and refused to permit him to visit his daughter as he was entitled to do by the terms of their separation agreement brought this proceeding to enforce the custodial provisions of the Alabama decree which had incorporated and confirmed the separation agreement from which his visitation rights arose. Although the respondent raised no question as to the jurisdiction of the Family Court to entertain the application, this Court held that in the absence of a referral from the Supreme Court the Family Court had no jurisdiction to entertain an application to enforce, as distinguished from an application to modify on the ground of changed circumstances (Family Court Act, § 468), the custodial provisions of an out of state divorce decree and pursuant to the provisions of N.Y.Const. Art. VI, § 19, subdue transferred the matter to the Supreme Court. (Abreu v. Abreu, 45 Misc.2d 925, 258 N.Y.S.2d 134).

The Supreme Court acting pursuant to the provisions of section 652 of the Family Court Act has now referred the application to this Court and counsel for both parties have stipulated that all testimony heretofore taken before this Court prior to the transfer of the application to the Supreme Court may be considered by this Court in making its determination. The provisions of section 2001 of the Civil Practice Law and Rules, entitled 'Mistakes, omissions, defects and irregularities' and providing that '[a]t any stage of an action, the court may permit a mistake, omission, defect or irregularity to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded' is applicable to this situation (Family Court Act, § 165).

There remains, however, a troublesome question of jurisdiction, for nowhere in the Family Court Act is there statutory authority to entertain an application to enforce, as distinguished from an application to modify ¹, the custodial arrangements of an out of state judgment fixing custody made in an action for divorce, separation, or annulment.

The omission of statutory authority to entertain an application to enforce the custodial provisions of an out of state matrimonial judgment or decree may be accounted for by the fact that '[t]he full faith and credit clause does not apply to custody decrees' (Matter of Bachman v. Mejias, 1 N.Y.2d 575, 580, 154 N.Y.S.2d 903, 906, 136 N.E.2d 866, 868; Matter of Hicks v. Bridges, 2 A.D.2d 335, 155 N.Y.S2d 746; May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221). New York is, therefore, not required to recognize or accept as binding upon it the custody provisions of the Alabama divorce decree and this Court has power to modify the custodial provisions of the out of state judgment on a showing of change of circumstances subsequent to the entry of the judgment. (Family Court Act, § 468).

If this Court is not required to recognize the custody provisions of the parties' Alabama divorce decree, may it do so as a matter of comity? The answer to this question may be found in Mr. Justice Frankfurter's concurring opinion in May v. Anderson, supra where in commenting upon the Court's opinion which he apparently found somewhat fuzzy he said (pp. 535, 536, 73 S.Ct. p. 844): 'What is decided--the only thing the Court decides--is that the Full Faith and Credit Clause does not require Ohio, in disposing of the custody of children in Ohio, to accept, in the circumstances before us, the disposition made by Wisconsin. The Ohio Supreme Court felt itself so bound. This Court does not decide that Ohio would be precluded from recognizing, as a matter of local law, the disposition made by the Wisconsin court. For Ohio to give respect to the Wisconsin decree would not offend the Due Process Clause. Ohio is no more precluded from doing so than a court in Ontario or Manitoba would be, were the mother to bring the children into one of these provinces'.

In Matter of Lang v. Lang, 9 A.D.2d 401, 406-407, 193 N.Y.S.2d 763, 768-769, a case in which the Court felt that comity required it to give effect to the decree of the Swiss Courts which had domiciliary jurisdiction over two Swiss children, the Court recognized that 'it has been expressly held that the full faith and credit clause in the federal constitution * * * does not apply to custody decrees and that the responsibility of the New York courts as parens patriae transcends the rule of comity ([Matter of] Bachman v. Mejias, supra). The rule is the same in most other jurisdictions (Annotation: Custody of Child-Jurisdiction, 4 A.L.R.2d 7 et seq.). ¹

But', the Court goes on to say, 'the existence of power in the Court to ignore the Swiss decree and depart from principles of comity does not mean that the power should be exercised in the absence of extraordinary circumstances demonstrating that otherwise the children will suffer (Finlay v. Finlay, 240 N.Y. 429, 148 N.E. 624, 40 A.L.R. 937; Wicks v. Cox, 146 Tex. 489, 208 S.W.2d 876, 878, 4 A.L.R.2d 1; see [Matter of] Sutera v. Sutera, 1 A.D.2d 356, 150 N.Y.S.2d 448; cf. Arpels v. Arpels, 9 A.D.2d 336, 193 N.Y.S.2d 754). * * * And the crux of the matter here is that only by withholding the power may the interests of the children be served.

'Certainly, neither the Bachman nor the Hicks cases, supra, are authority to the contrary.'

Thus it appears that while this Court is not required by the Full Faith and Credit Clause to accept as binding upon it the custodial provisions of the Alabama decree, it may nevertheless on principles of comity recognize and give effect to the Alabama decree if it finds that the best interests and the welfare of the child coincide with the disposition already made. The case for recognition on principles of comity may be more compelling where the foreign court had domiciliary jurisdiction of the children as in Lang, supra, but even where the child always was a domiciliary of this state, as it is in this case, there is no constitutional reason why this Court cannot give effect to the foreign decree disposing of the custody of a child domiciled in the state if this court concludes that the best interests and welfare of the child, which is always the primary consideration, require it.

In Sager v. Sager, 21 A.D.2d 183, 249 N.Y.S.2d 467, the parties had obtained an Alabama divorce, which decree confirmed and ratified an agreement between the parties which provided that the husband was to have custody of their two children with 'reasonable rights of visitation' to the wife. The wife commenced an action in the Supreme Court by the service of a complaint alleging that the husband had violated the terms of the separation agreement by refusing to allow her visitation rights and praying, inter alia that the custody of the children be decreed to her. It was contended by the appellant that neither the Supreme Court, nor the Family Court to which the case was referred for determination had jurisdiction of the subject matter. Distinguishing Finlay v. Finlay, 240 N.Y. 429, 148 N.E. 624, 40 A.L.R. 937 relied upon by the appellant and citing Matter of Bachman v. Mejias, 1 N.Y.2d 575, 154 N.Y.S.2d 903, 136 N.E.2d 866, the court said (21 A.D.2d p. 185, 249 N.Y.S.2d p. 470), 'in the present circumstances, the Supreme Court, in our opinion, had jurisdiction.' Rejecting the appellant's contention that the Supreme Court did not have authority to transfer and refer the action to the Family Court for determination, the court said (21 A.D.2d p. 186, 249 N.Y.S.2d p. 470): '* * * Section 652 provides jurisdiction to determine custody in matrimonial actions upon referral from the Supreme Court. There is no specific provision in any of these implementing sections with reference to petitions in equity when not directly associated with matrimonial actions. The section would appear to be intended to grant jurisdiction in circumstances, such as here, where custody has been previously determined in a separation agreement and thereafter ratified in a foreign divorce decree. If such were not the intent of the Legislature, such limitation should be spelled out in subsequent legislation.'

Even in the absence of specific implementing legislastion referring to a foreign matrimonial judgment which has confirmed and ratified a separation agreement disposing of the custody of children, the Appellate Division found in Article VI, § 13, subd. c ² of the New York Constitution sufficient warrant for the Family Court's assumption of jurisdiction in circumstances such as presented by Sager v. Sager, supra.

The only discernible difference between the Sager case and the present case is in the type and extent of the relief sought--in the Sager case the parent with visitation rights sought full custody, whereas the petitioner here seeks only to have this Court confirm and aid him in securing the full enjoyment of his visitation rights. If the Family Court has jurisdiction, when the matter has been referred to it by the Supreme Court to grant relief to a parent accorded visitation rights by a foreign divorce decree which had confirmed a...