Borges v. Borges

• Decision Date: 18 January 1974
• Citation: 354 N.Y.S.2d 507,77 Misc. 2d 985
• Parties: Application of Barbara L. BORGES, Petitioner, For An Order to Show Cause to Determine the Custody of Rebecca Michelle Borges, a child now held by Jeffrey P. BORGES, Respondent.
• Court: New York Family Court

Page 507

354 N.Y.S.2d 507

77 Misc.2d 985

Application of Barbara L. BORGES, Petitioner, For An Order to Show Cause to Determine the Custody of Rebecca Michelle Borges, a childnow held by Jeffrey P. BORGES, Respondent.

Family Court, Ulster County.

Jan. 18, 1974.

Carnright, Schirmer & Hrdlicka, Saugerties (Edward E. Strohsal, Saugerties, of counsel), for petitioner.

Rosenblum & Lamb, Saugerties (Morris Rosenblum, Saugerties, of counsel), for respondent.

HUGH R. ELWYN, Judge:

By petition and order to show cause pursuant to section 651(b) of the Family Court Actthe petitioner seeks to regain the custody of her year and a half old daughter, Rebecca Michelle who since March 3rd, 1973 has been in the custody of her father, Jeffrey P. Borges.

The parties were married on July 18, 1970 in the State of Alabama.One child Rebecca Michelle was born of their marriage on January 25, 1972.Marital difficulties developed and on February 11, 1973the parties separated.While the petitioner sought to obtain suitable separate living accommodations for herself she left the child with her mother.On the afternoon of March 3rd, the respondent took the child from his mother-in-law's home for the purpose of taking the child to visit a doctor.Some time after taking the child to the doctor he decided not to return the child to her grandmother's home and instead departed immediately with the child for New York State, where he arrived approximately 24 hours later.The respondent subsequently informed his wife of the child's whereabouts, but because he has refused to return the child to the mother who still resides in the State of Alabama this proceeding was commenced by the mother on June 22, 1973.

Shortly after the respondent's precipitate departure for New York and on March 6, 1973 the wife commenced a divorce proceeding in the Courts of Alabama.On March 8, 1973, only five days after the respondent left Alabama, the Circuit Court of Coffee County, Alabama entered an interim order awarding the care, custody and control of the child Rebecca Michelle to her mother pending further orders of the Court, directing the respondent to deliver the child to her mother immediately and enjoining him from interfering with the custody and control of the mother or removing the child from the jurisdiction of the Court.

Subsequently, and on July 3rd, 1973the Circuit Court of Coffee County, Alabama entered its decree of divorce based upon service by publication, by which it granted the complainantBarbara Borges a divorce from the defendantJeffrey P. Borges and awarded custody of the child to the petitioner.The Alabama Court, however, 'reserve(d) the fixing of alimony and support until such time as the Court may obtain jurisdiction of the person of the said Jeffrey P. Borges', thereby expressly recognizing that it had no personal jurisdiction over the respondent.

In this Courtthe petitioner, although conceding that custody decrees of foreign states are not entitled to full faith and credit under the full faith and credit clause of the United States Constitution(Matter of Bachman v. Mejias, 1 N.Y.2d 575, 154 N.Y.S.2d 903, 136 N.E.2d 866), contends that under the circumstances of this case the determination of the Alabama Court should be given recognition and cites in support thereof Lang v. Lang, 9 A.D.2d 401, 193 N.Y.S.2d 763, affd.7 N.Y.2d 1029, 200 N.Y.S.2d 71, 166 N.E.2d 861;Sloane v. Sloane, 20 A.D.2d 862, 248 N.Y.S.2d 445, affd.15 N.Y.2d 561, 254 N.Y.S.2d 536, 203 N.E.2d 217andBerlin v. Berlin, 21 N.Y.2d 371, 288 N.Y.S.2d 44, 235 N.E.2d 109.'Respondent's leaving Alabama to avoid a divorce and custody proceeding which he knew was imminent should'she says, 'be looked upon with the same disfavor as if he sought to avoid a custody decree already made.* * * The Alabama Court' it is argued 'had domicillary jurisdiction to make a custody decree, and absent a showing of an extraordinary or substantial change of circumstances, the Alabama decree should not be disturbed (Metz v. Morley, 29 A.D.2d 462(289 N.Y.S.2d 364)).'

There is no doubt that as far as full faith and credit is concerned, custody decrees occupy a unique position in the law.That they are not required to be accorded the full faith and credit required by Article IV, Section 1 of the United States Constitution to other judicial proceedings is firmly established by many authorities (Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133.May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221;Ford v. Ford, 371 U.S. 187, 83 S.Ct. 273, 9 L.Ed.2d 240;Hernstadt v. Hernstadt, 2 Cir., 373 F.2d 316;Bachman v. Mejias, 1 N.Y.2d 575, 154 N.Y.S.2d 903, 136 N.E.2d 866;Matter of Berlin v. Berlin, 21 N.Y.2d 371, 288 N.Y.S.2d 44, 235 N.E.2d 109, cert. den.393 U.S. 840, 89 S.Ct. 118, 21 L.Ed.2d 111;Matter of Pritchett v. Pritchett, 1 A.D.2d 1009, 151 N.Y.S.2d 481, affd.2 N.Y.2d 947, 162 N.Y.S.2d 354, 142 N.E.2d 421;Hicks v. Bridges, 2 A.D.2d 335, 155 N.Y.S.2d 746;Matter of Gaukel v. Gaukel,35 A.D.2d 1056, 316 N.Y.S.2d 827;People ex rel. Katherine 'XX'v. Roger Lewis 'ZZ', 43 A.D.2d 196, 350 N.Y.S.2d 800(3rd Dept.1974);Matter of Abreu v. Abreu, 46 Misc.2d 942, 261 N.Y.S.2d 687;People ex rel. Wilson v. Lawrence, 73 Misc.2d 916, 343 N.Y.S.2d 249;Scarpetta v. DeMartino, Fla.App., 254 So.2d 813).¹

What uncertainty exists arises out of the question whether the Court, before it may disregard the prior foreign decree and make its own determination, must first find some material change of circumstances.A finding of a change of circumstances has frequently been held by New York Courts to be a Sine qua non for modification of a foreign custody decree (Ansorge v. Armour, 267 N.Y. 492, 499, 196 N.E. 546, 548;People ex rel. Herzog v. Morgan, 287 N.Y. 317, 320, 39 N.E.2d 255, 256;Matter of Berlin v. Berlin, 21 N.Y.2d 371, 377, 288 N.Y.S.2d 44, 48, 235 N.E.2d 109, 112, cert. den.393 U.S. 840, 89 S.Ct. 118, 21 L.Ed.2d 111;Matter of Standish, 197 App.Div. 176, 188 N.Y.S. 900, affd.233 N.Y. 689, 135 N.E. 972;People ex rel. Tull v. Tull, 245 App.Div. 508, 510, 283 N.Y.S. 183, 185, affd.270 N.Y. 619, 1 N.E.2d 359;Matter of Bull (Hellman), 266 App.Div. 290, 291, 42 N.Y.S.2d 53, 54;MacKay v. MacKay, 279 App.Div. 350, 110 N.Y.S.2d 82;Matter of Sutera v. Sutera, 1 A.D.2d 356, 150 N.Y.S.2d 448;Matter of Lang v. Lang, 9 A.D.2d 401, 409, 193 N.Y.S.2d 763, 770;Affd.7 N.Y.2d 1029, 200 N.Y.S.2d 71, 166 N.E.2d 861;Sloane v. Sloane, 20 A.D.2d 862, 248 N.Y.S.2d 445, affd.15 N.Y.2d 561, 254 N.Y.S.2d 536, 203 N.E.2d 217;People ex rel. Foussier v. Uzielli, 23 A.D.2d 260, 260 N.Y.S.2d 329;Metz v. Morley, 29 A.D.2d 462, 464, 289 N.Y.S.2d 364, 366;Doolittle v. Doolittle, 35 A.D.2d 684, 314 N.Y.S.2d 637;People ex rel. Abajian v. Dennett, 15 Misc.2d 260, 265, 184 N.Y.S.2d 178, 184;Matter of Hahn v. Falce, 56 Misc.2d 427, 433, 289 N.Y.S.2d 100, 106;Matter of Haines v. Haines, 56 Misc.2d 440, 445, 288 N.Y.S.2d 957, 962;See alsoFamily Court Act, § 654;16 N.Y.Jur.Domestic Relations § 975;cfKovacs v. Brewer, 356 U.S. 604, 78 S.Ct. 963, 2 L.Ed.2d 1008 in which the Supreme Court remanded the case to the State Court to determine the issue of changed circumstances to avoid determination of the constitutional questions.But see dissenting opinion of Justice Frankfurter (pp. 609--616, 78 S.Ct. p. 968) criticizing the 'evident implication of the Court's opinion * * * that, unless 'circumstances have changed' since the latter decree, it must (give) full faith and credit').²

If the cases which hold that a material change in circumstances or some extraordinary circumstance affecting the health and welfare of the child must first be found to exist before the Court of the forum may modify a foreign custody decree must uniformly be applied, then the petitioner is entitled to prevail upon the strength of her Alabama decree which awarded her the custody of the child, for except for the change in the child's domicile wrought by the father's precipitate removal of the child from Alabama to New York, there has been no showing of any material change in circumstances or any extraordinary circumstances affecting the health and welfare of the child (Hahn v. Falce, supra, 56 Misc.2d 434, 289 N.Y.S.2d 108;Haines v. Haines, supra, 56 Misc.2d 445, 288 N.Y.S.2d 962).

However, under the circumstances of this case in which the award of the child's custody was made to the mother in an Ex parte divorce action in which the Alabama Court had no personal jurisdiction over the father and in which no facts were presented or considered by the Court concerning the child's welfare, the power of this Court to act in the child's best interest is not so limited (Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133;May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221;Ford v. Ford, 371 U.S. 187, 83 S.Ct. 273, 9 L.Ed.2d 240).

In Halvey v. Halvey, supra, a case remarkably similar to this case on its facts, the wife had obtained a Florida divorce decree upon service by publication, the husband making no appearance in the action.The day before the Florida decree was granted, the husband without the knowledge or approval of his wife took the child back to New York.The next day the Florida Court granted the wife a divorce and awarded her the custody of the child.

The United States Supreme Court in its opinion by Justice Douglas recognized that 'Facts which have arisen since the original decree are one basis for modification of the custody decree.Frazier v. Frazier, 109 Fla. (164), p. 168, 147 So. (464), p. 465;Jones v. Jones, 156 Fla. 524, 527, 23 So.2d 623, 625.But the power is not so restricted.It was held in Meadows v. Meadows, 78 Fla. 576, 83 So. 392--393, that 'the proper custody of the minor child is a proper subject for consideration by the chancellor at any time, even if facts in issue could have been considered at a previous hearing, If such facts were not presented or considered at...