Ambrose v. Ambrose

• Decision Date: 30 January 1951
• Citation: 200 Misc. 595
• Parties: "Rose Ambrose", on Behalf of "Morris Ambrose", an Infant, Petitioner,<BR>v.<BR>"Michael Ambrose", Respondent.<SUP><A onclick=scife_fn_clicked(); href="#[1]" name=r[1]>[*]</A></SUP>
• Court: New York Family Court

200 Misc. 595

"Rose Ambrose", on Behalf of "Morris Ambrose", an Infant, Petitioner,

v."Michael Ambrose", Respondent.^[*]

DISERIO, J.

January 30, 1951.

Sidney Schwamm for petitioner.

Alex J. Glauberman for respondent.

DISERIO, J.

Petitioner though receiving pursuant to an agreement, and embodied in the decree of an Arkansas divorce, alimony in the sum of $200 monthly for her maintenance and support as well as for the maintenance and support of an only child makes application pursuant to section 92 and subdivision 1 of section 137, of the Domestic Relations Court Act of the City of New York for an order to compel respondent to provide more fairly for his infant son, and according to his substantial means.

The respondent admittedly earns $40,000 gross, and claims it nets him at least $20,000 net annually.

It is conceded, respondent is regularly paying the alimony provided for in the Arkansas decree, and that to the credit of the respondent other moneys have been expended by him for the child as well as for the mother.

The parties were married in Indiana in 1939. They lived together as husband and wife until about August 10, 1943, when they separated in the city of New York. Since the date of marriage the parties have been, and now are, residents of the city, county and State of New York. The infant petitioner is the only issue of said marriage and is nine years of age.

Petitioner originally instituted an action for a separation in the Supreme Court, New York County, which resulted in a decree on June 21, 1944, in favor of the petitioner and against the respondent. The decree provided as follows: "Ordered, Adjudged and Decreed that the defendant pay to the plaintiff until such time as she remarries, alimony in the sum of $70.00 per week for her maintenance and support including the maintenance and support of the child thereafter; such permanent alimony to be paid each week commencing with the entry of the final decree herein; and until such time as the decree is entered, the defendant is to continue payments of temporary alimony as heretofore ordered."

Their marital status still unsatisfactory, they thereafter and on August 16, 1945, made arrangement that petitioner was to seek a divorce in Arkansas and that respondent was to appear in the same.

And as consideration for the respondent's appearing, the parties agreed to modify the decree of the New York Supreme Court as follows:

"(a) That the terms and conditions of a judgment in an action for a separation between the First and Second Parties dated the 15th day of January, 1944, and entered in the Supreme Court of the State of New York, County of New York, shall be modified as follows:

"That the First Party shall pay to the Second Party during the lifetime of the Second Party, or until such time as she remarries, alimony in the sum of Two Hundred ($200.00) Dollars per month for her maintenance and support, including the maintenance and support of the child, free of income tax, in addition to which the First Party shall pay for the medical care of the child, and if the First Party shall choose to have the child sent to any private school or summer camp, such expenses shall be likewise paid by him."

On October 23, 1945, a decree of divorce was obtained by the petitioner against the respondent in the State of Arkansas. The decree recites the appearance of the respondent pursuant to his said agreement with petitioner, and embodied the alimony as provided for the maintenance and support for the petitioner and the child.

Despite the New York decree of separation, the subsequent decree of divorce in Arkansas, and the provisions therein provided for as to alimony and support for both, on March 22, 1950, and after the Arkansas divorce, the petitioner made application pursuant to section 1170 of the Civil Practice Act in the New York Supreme Court for an order modifying the aforesaid judgment of separation so that "suitable and proper provision is made for the maintenance and support of MORRIS AMBROSE, an infant".

The respondent opposed said application and a short form order denying the application was made and entered on April 13, 1950, which read as follows: "Upon the foregoing papers this motion to modify decree is denied (see Schacht v. Schacht, 295 N.Y. 439; Coe v. Coe, 334 U. S. 378)".

Thereafter and on April 20, 1950, petitioner obtained an order to show cause from Hon. Justice JOHN McGEEHAN for a reargument of the said motion.

Again, as on the original application, the Supreme Court held (by order of Mr. Justice McGEEHAN, made and entered June 19, 1950): "Upon the foregoing papers this motion to reargue is granted. Upon reargument the court adheres to its original determination. It appears that both parties submitted to the jurisdiction of the court in the State of Arkansas and the court there acquired jurisdiction in personam as well as in rem and made provision for the support of plaintiff and the infant issue of the marriage in its final decree. This court cannot be regarded as an appellate court nor has this court the co-ordinate power to modify that decree. The circumstances shown in this motion vary from those shown in Michell v. Michell (276 App. Div. 1090), and the ruling in that case has no application to the facts shown herein."

Therefore, petitioner served and filed notices of appeal from both of said orders made by Mr. Justice McGEEHAN, and the appeal lies dormant, since petitioner has not perfected it, claiming a lack of funds. Counsel wisely assumes no real purpose can be served in completing the appeal. It appears quite likely it would be upheld since the Supreme Court lacked jurisdiction to consider solely, the rights of the minor child, once the Arkansas Court negated the decree of separation in the courts of New York, and that the Arkansas decree was entitled to full faith and credit (U. S. Const., art. IV, § 1) in this State.

It now is the contention, that the needs and situation of the infant can be considered by the Domestic Relations Court, within the provision of section 137 of the Domestic Relations Court Act of the City of New York, and that in the consideration of the application, the court will take judicial notice of the greatly increased cost of living at present, as compared with 1943, or 1945, as well as the increasing needs of a growing child.

The...