Finlay v. Finlay

Decision Date15 July 1925
Citation148 N.E. 624,240 N.Y. 429
CourtNew York Court of Appeals Court of Appeals

Action by A. Lugar Finlay against Dorothea Blodgett Finlay. From an order of Appellate Division (212 App. Div. 786, 208 N. Y. S. 585), reversing order of Special Term which granted defendant's motion for judgment on pleadings, defendant appealed by permission, and the Appellate Division certified a question to the Court of Appeals.

Question answered, order of Appellate Division reversed, and that of Special Term affirmed.

The Appellate Division certified the following question:

‘Does the complaint state a cause of action of which the Supreme Court has jurisdiction?’Appeal from Surpeme Court, Appellate Division, Second department.

Louis J. Wolff and Harding Cowan, both of New York City, for appellant.

Theodore F. Van Doren, of New York City, for respondent.


The case is here upon defendant's motion for judgment on the pleadings.

[1] Plaintiff, a resident of St. Louis, Mo., brings this action against his wife, who is living in New York, for judgment regulating the custody of their infant children. Husband and wife formerly had their home together in Westchester county, New York. In the early part of 1923 the wife left the husband, taking the children with her, and since then has refused to live with him. Following this abandonment, the husband went to St. Louis, where he still maintains his home. The children are with their mother in Westchester county, N. Y. She refuses to give them up. The husband does not wish a separation. He could not get one from the courts of New York in view of his nonresidence. Civ. Prac. Act, § 1162. What he wishes is a judgment that will enable him to share with his wife the custody of the children. He prays for a decree ‘granting unto the plaintiff the custody and control during fixed periods each succeeding year of his said two sons, and for such other and further relief as may be just in the premises.’

[2][3] The jurisdiction of a state to regulate the custody of infants found within its territory does not depend upon the domicile of the parents. It has its origin in the protection that is due to the incompetent or helpless. Woodworth v. Spring, 4 Allen (Mass.) 321, 323;White v. White, 77 N. H. 26, 86 A. 353;Hanrahan v. Sears, 72 N. H. 71, 72, 54 A. 702;Matter of Hubbard, 82 N. Y. 90, 93. For this, the residence of the child suffices, though the domicile be elsewhere. Matter of Hubbard, supra. But the limits of the jurisdiction are suggested by its origin. The residence of the child may not be used as a pretense for the adjudication of the status of parents whose domicile is elsewhere, nor for the definition of parental rights dependent upon status. Cf. Kline v. Kline, 57 Iowa, 386, 10 N. W. 825,42 Am. Rep. 47;Griffin v. Griffin, 95 Or. 78,187 P. 598;Lanning v. Gregory, 100 Tex. 310, 99 S. W. 542,10 L. R. A. (N. S.) 690, 123 Am. St. Rep. 809;Blackinton v. Blackinton, 141 Mass. 432, 436, 5 N. E. 830,55 Am. Rep. 484;Matter of Standish, 197 App. Div. 176, 188 N. Y. S. 900. Parents so situated must settle their controversies at home. Our courts will hold aloof when intervention is unnecessary for the welfare of the child.

We think the welfare of children does not appear from the complaint to be the basis of the husband's prayer for an apportionment of parental rights, nor is an action between contending spouses the proper form of remedy.

[4] One situation there is, indeed, in which such an inquiry will be pursued in connection with an action between the spouses, or as a supplement thereto. The statute permits a judgment fixing the custody of children as an incident to a judgment for divorce or separation. If divorce or separation is refused, jurisdiction is not retained to adjudicate the incident upon the failure of the principal. Davis v. Davis, 75 N. Y. 221. Relief must then be sought, not in the statutory action for divorce or separation, but by recourse to other remedies. ‘In this statutory action, the power of the court is to be sought in the statute itself, and only such judgment can be rendered as is authorized thereby.’ Davis v. Davis, supra, page 227; Mollring v. Mollring, 184 Iowa, 464, 167 N. W. 524; cf. Johnson v. Johnson, 206 N. Y. 561, 100 N. E. 408, Ann. Cas. 1914B, 407. Some courts, construing their own statutes, have reached a different conclusion where divorce or separation has been demanded, but refused. Morrill v. Morrill, 83 Conn. 479, 77 A. 1;Horton v. Horton, 75 Ark. 22, 86 S. W. 824,5 Ann. Cas. 91;Power v. Power, 65 N. J. Eq. 93, 55 A. 111. They apply in such circumstances the principle that equity, obtaining jurisdiction for one purpose, will grant complete relief. Nowhere is it held that an action may be maintained for custody simpliciter.

[5][6] The plaintiff now before us makes no demand for divorce or separation. That being so, we seek the measure of his rights, not in the statuory jurisdiction in causes matrimonial, but in the jurisdiction to determine the custody of infants as it exists at law and in equity irrespective of the statute. We find no authority for the exercise of that jurisdiction through the medium of an action by one parent against the other. Except when adjudged as an incident to a suit for divorce or separation, the custody of children is to be regulated as it has always been in one or other of two ways: By writ of habeas corpus, or by petition to the chancellor. Queen v. Gyngall, 1893, 2 Q. B. Div. 232, 238; Eversley on the Law of Domestic Relations, 514 et seq.; cf. People ex rel. Riesner v. New York Nursery & Child's Hospital, 230 N. Y. 119, 124, 129 N. E. 341. The plaintiff argues that habeas corpus is denied to him by section 70 of the Domestic Relations Law (Consol. Laws, c. 14), since he is not an inhabitant of the state. The origin of that restriction is to be sought in a section of the Revised Statutes (2 R. S. p. 148, § 2), which was intended to enlarge the common-law remedies available to the wife. People ex rel. Nickerson v. ________, 19 Wend. 16, 18;People ex rel. Ordronaux v. Chegaray, 18 Wend. 637, 642;People ex rel. Sternberger v. Sternberger, 12 App. Div. 398, 42 N. Y. S. 423. The Domestic Relations Law (first enacted in 1896) gave the same remedy to the husband, though he already had it at common law. We do not need to determine whether there is to-day a remedy by habeas corpus available to either spouse irrespective of the statute. Dom. Rel. Law (Cons. Laws, c. 14); cf. People ex rel. Riesner v. New York Nursery & Child's Hospital, supra. If we were to assume with the plaintiff that the writ has been denied to him, there would remain his remedy by petition to the chancellor or to the court that has succeeded to the chancellor's prerogative. Queen v. Gyngall, supra; Matter of Spence, 2 Phil. Ch. 247, 248; Wilcox v. Wilcox, 14 N. Y. 575;Matter of Knowack, 158 N. Y. 482, 53 N. E. 676,44 L. R. A. 699; Power v. Power, supra. Nothing in the habeas corpus act affects that...

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