Dee v. Dee
| Decision Date | 25 October 1957 |
| Citation | 9 Misc.2d 964,169 N.Y.S.2d 789 |
| Parties | Nora DEE * Petitioner, v. Vincent DEE * Respondent. |
| Court | New York Domestic Relations Court |
Myron C. Fox, Little Neck, for petitioner.
Hill, Sharpe & McFadden, New York City (W. Eugene Sharpe, New York City, of counsel), for respondent.
Both the petitioner and the respondent join in seeking an order of discontinuance after both parties in person and their respective attorneys stipulated and agreed to discontinue the proceedings before the Court on the grounds that 'the parties having made satisfactory disposition among themselves as the matters now before the Court', while the respondent by his attorney, additionally, seeks a further order vacating an existing order on the Treasurer of the City of New York, pursuant to which the sum of Eighteen ($18) Dollars is being deducted from the respondent's semi-monthly salary of $110.57 as a civil employee.
The record of the proceedings had in the Bronx Family Court Division of this Court reveals that the initial hearing on the Petitioner's claim for support for herself and that of the child born to the parties, was held on April 5, 1955. The parties were living apart and the child resided with his mother. An order was duly made against the respondent for the support only of the child (no order for support of the petitioner-mother was made) in the amount of $18, payable semi-monthly and based on the respondent-father's semi-monthly earnings of $102. Respondent was permitted visitation with the child at stated times. The Court further ordered a psychiatric examination of both parties.
Subsequently, after a hearing on the petitioner-mother's complaint that respondent was in arrears in his payments, the original order was modified to the extent that the respondent was required to pay the accrued arrears at the rate of an additional payment of $2 semi-monthly. At a later date, upon a further complaint by the petitioner that respondent was not making prompt payments, a further order was made by the Court, pursuant to Section 132, subd. 2 of the Domestic Relations Court Act, which order directed the Treasurer of the City of New York to deduct the sum of $18 from the respondent's semi-monthly salary of $110.57 and remit said deducted amount to this Court for disbursement to the petitioner for the support and maintenance of the child only. All arrears to date were thereupon cancelled.
The Stipulation of Discontinuance signed by the parties and their attorneys was received in the mail by the Probation Department of this Court with a covering letter from the attorneys for the respondent-father. Upon submission of the papers to the Court for its action, the Court examined the files and records of the case and in view of the psychological and psychiatric reports on the parties, directed the parties and the attorneys to appear before the Court with a view to safeguarding the interests of the child by inquiring into the statement contained in the Stipulation that 'the parties having made satisfactory disposition among themselves as to the matters now before the Court.' (Emphasis supplied.) The testimony of the parties then revealed that in August of 1956, the parties had entered into a separation agreement which, among other things, provided 'that absolute and sole care and custody of the said infant issue of the marriage' shall henceforth be with the mother; that the father did 'waive and relinquish for all time, his right to visit the said child'; and said agreement further provided that the mother did 'renounce and relinquish any right to support the said infant issue of the marriage for so long as the waiver of the aforementioned right of visitation shall continue but there shall be no reinstitution of visitation rights without the prior consent of the (mother), the termination of the waiver not being in the discretion of the (father) it being clearly understood that in the event that the (father) is required to support the infant issue of the marriage, then he shall likewise have the right to visit the child'; that the terms of the agreement would merge and be made part of any decree of divorce which either party might obtain.
Further testimony revealed that the respondent did institute divorce proceedings in Alabama wherein petitioner appeared by an attorney and put in an answer and respondent then obtained a decree of divorce in the Circuit Court of Russell County, Alabama, on September 11, 1956. The only provision in said decree concerning the child is contained in paragraph numbered 4, wherein the mother was 'awarded the care, custody and control of said minor child'. The decree is silent as to any support for said child.
After the Court learned of the separation agreement and the decree of divorce, and during the pendency of this matter, the Court ordered a home visit made by the Probation Officer having cognizance of this case to ascertain the circumstances and conditions under which the child was being reared by his mother, the petitioner herein. Testimony of said visit disclosed that the child was living with his mother, paternal grandmother, and a young maternal aunt in a three room, cold water flat in a fifty year old building in a shopping district. The gas and electricity had been turned off because of...
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