Brown v. Brown

Decision Date31 March 1976
Citation86 Misc.2d 71,381 N.Y.S.2d 803
PartiesThomas Nelson BROWN, an incompetent by Willett Thomas, mother and natural guardian and Willett Thomas v. Nancy Nielsen BROWN. (Part V)
CourtNew York Supreme Court
MEMORANDUM

LOUIS B. HELLER, Justice.

In this matrimonial action for an annulment defendant-wife (hereinafter sometimes referred to as Nancy) moves for an order dismissing the complaint and directing that custodt of her 'incompetent' husband (hereinafter sometimes referred to as Thomas) be turned over to her so that they may return to California.

The facts leading up to the present action have been taken from a related decision of the California Supreme Court, hereinafter discussed, and are as follows:

Thomas, while residing in California, became incapacitated in March 1974 as a result of a stroke. He was rendered paralyzed and mute and was hospitalized. On May 18, 1974 while on day leave from the hospital he married Nancy in California, whom he had been living with there for a period of approximately five years prior thereto. In June 1974 Thomas was released from the hospital to his wife's custody. Nancy has a master's degree in vocational rehabilitation counseling and with the help of friends and doctors she developed a rehabilitation program for her husband.

Thomas' mother (hereinafter sometimes referred to as Willett), a resident of Brooklyn, upon learning of her son's illness went to California for the purpose of taking him back to Brooklyn for medical attention. It should be noted that during the eight or nine years prior to his illness Thomas and his mother saw each other on only two or three occasions and communicated infrequently. On June 11, 1974 the mother filed in the Superior Court of the City and County of San Francisco a petition to have Thomas adjudged incompetent and to have herself appointed guardian of his person and estate. Nancy filed an objection to the petition alleging in substance that it would not be in Thomas' best interests to remove him from the family, friends and rehabilitation program which he had in the State of California.

On July 26, 1974 the Superior Court filed its formal order adjudging Thomas an incompetent, appointing Willett guardian of his person and estate and authorizing her to take Thomas to New York for medical care (In the Matter of the Estate and Guardianship of Thomas Nelson Brown, an Incompetent Person, Superior Court, San Francisco, California, No. 207730). Nancy appealed this decision and it was affirmed by the Court of Appeals of the State of California. Nancy thereupon took an appeal to the Supreme Court of the State of California which on August 13, 1974 granted a stay of the execution of this decision pending its final determination of the matter.

Subsequently, as related by the parties in their affidavits on this motion, Nancy brought her husband to New York in November 1975, alleging that she did so at his request for the purpose of visiting his mother to check on the condition of her health. They stayed at the mother's house in Brooklyn for a few days when, according to Nancy, Willett ordered her out of the house and physically restrained Thomas from leaving.

Willett commenced the present action for an annulment on behalf of her son as his 'mother and natural guardian' on December 1, 1975. Shortly afterwards a controversy arose as to the defendant being able to visit with her husband, necessitating this court on January 12, 1976 to direct Willett to permit Nancy to visit her husband for three hours each day.

Thereafter, by letter dated March 5, 1976 the court was advised by defendant's attorney that the Supreme Court of the State of California had rendered its decision. This court was furnished a copy of said decision, which affirmed the finding of the Superior Court that Thomas was incompetent but reversed the appointment of Willett as guardian (Guardianship of Person and Estate of Thomas Nelson Brown, an Incompetent Person, 16 Cal.3d 326, 128 Cal.Rptr. 10, 546 P.2d 298, 1976).

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4 cases
  • Morris ex rel. Morris v. Trust Co. of Va.
    • United States
    • U.S. District Court — Middle District of Alabama
    • March 31, 2015
    ...37. There are examples of cases outside Virginia that followed the rule articulated in Kernochan. In Brown v. Brown, 381 N.Y.S.2d 803, 805 (N.Y. Sup. Ct. 1976), the trial court concluded that a woman could not change her incompetent adult son's domicile simply by physically removing him fro......
  • In re Bonora
    • United States
    • New York Supreme Court — Appellate Division
    • December 3, 2014
    ...382 [Sup.Ct., Delaware County], revd. on other grounds Matter of Lillian U., 66 A.D.3d 1219, 887 N.Y.S.2d 321 ; Brown v. Brown, 86 Misc.2d 71, 74, 381 N.Y.S.2d 803 [Sup.Ct., Kings County] ; see also Antone v. General Motors Corp., Buick Motor Div., 64 N.Y.2d 20, 28, 484 N.Y.S.2d 514, 473 N.......
  • In re Bonora
    • United States
    • New York Supreme Court — Appellate Division
    • December 3, 2014
    ...382 [Sup.Ct., Delaware County], revd. on other grounds Matter of Lillian U., 66 A.D.3d 1219, 887 N.Y.S.2d 321; Brown v. Brown, 86 Misc.2d 71, 74, 381 N.Y.S.2d 803 [Sup.Ct., Kings County]; see also Antone v. General Motors Corp., Buick Motor Div., 64 N.Y.2d 20, 28, 484 N.Y.S.2d 514, 473 N.E.......
  • In the Matter of Lillian
    • United States
    • Supreme Court of Delaware
    • April 17, 2008
    ... ... (Estate of Bauch, NYLJ, Jan. 8, 2004, at 20, col 3 [Sur Ct, Suffolk County]; Brown ... 20 Misc.3d 217 ... v Brown, 86 Misc 2d 71 [Sup Ct, Kings County 1976]; Matter of Webber, 187 Misc 674 [Sur Ct, Kings County 1946]; Matter of ... ...
5 books & journal articles
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Archive New York Civil Practice Before Trial. Volume 2 - 2014 Contents
    • August 18, 2014
    ...1994), §36:350 Brown v. Albany Citizens Council on Alcoholism, Inc. , 199 AD2d 904, 605 NYS2d 577 (3d Dept 1993), §36:491 Brown v. Brown , 86 Misc2d 71, 381 NYS2d 803 (Sup Ct Kings Co 1976), §39:231 Brown v. Bullock, 32 Misc2d 111, 222 NYS2d 974 (Sup Ct New York Co 1961), §39:672 Brown v. C......
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Archive New York Civil Practice Before Trial. Volume 2 - 2016 Contents
    • August 18, 2016
    ...1994), §36:350 Brown v. Albany Citizens Council on Alcoholism, Inc. , 199 AD2d 904, 605 NYS2d 577 (3d Dept 1993), §36:491 Brown v. Brown , 86 Misc2d 71, 381 NYS2d 803 (Sup Ct Kings Co 1976), §39:231 Brown v. Bullock, 32 Misc2d 111, 222 NYS2d 974 (Sup Ct New York Co 1961), §39:672 Brown v. C......
  • Default Judgment; Dismissal for Failure to Act; Discontinuance
    • United States
    • James Publishing Practical Law Books New York Civil Practice Before Trial
    • May 2, 2018
    ...§39:231 Subject Matter Jurisdiction Plaintiff must show facts that confer the court with subject matter jurisdiction. [ Brown v. Brown , 86 Misc2d 71, 381 NYS2d 803 (Sup Ct Kings Co 1976).] NOTE: Determining jurisdiction Subject matter jurisdiction in matrimonial actions depends on: • The c......
  • Default Judgment; Dismissal for Failure to Act; Discontinuance
    • United States
    • James Publishing Practical Law Books Archive New York Civil Practice Before Trial. Volume 2 - 2014 Contents
    • August 18, 2014
    ...§39:231 Subject Matter Jurisdiction Plaintiff must show facts that confer the court with subject matter jurisdiction. [ Brown v. Brown , 86 Misc2d 71, 381 NYS2d 803 (Sup Ct Kings Co 1976).] note: D etermInIng jurIsDIctIon Subject matter jurisdiction in matrimonial actions depends on: • The ......
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