Friederwitzer v. Friederwitzer

• Decision Date: 16 February 1982
• Citation: 447 N.Y.S.2d 893,55 N.Y.2d 89,432 N.E.2d 765
• Parties: , 432 N.E.2d 765 Sharon FRIEDERWITZER, Appellant, v. Elliot FRIEDERWITZER, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 893

447 N.Y.S.2d 893

55 N.Y.2d 89, 432 N.E.2d 765

Sharon FRIEDERWITZER, Appellant, v. Elliot FRIEDERWITZER, Respondent.

Court of Appeals of New York.

Feb. 16, 1982.

Carl D. Bernstein, New York City, for appellant.

Stanley Lehrer, Melville, for respondent.

OPINION OF THE COURT

MEYER, Judge.

Extraordinary circumstances are not a sine qua non of a change in parental custody of a child, whether the original award of custody is made after plenary trial or by adoption of the agreement of the parties, without contest, and without merging the agreement in the judgment. The more particularly is this so with respect to a judgment governed as is the judgment in this case by rule 699.9 of the Appellate Division, Second Department (22 NYCRR 699.9), pursuant to which the trial court expressly 'retains jurisdiction * * * for the purpose' to the extent permitted by law, 'of making such further decree with respect to * * * custody * * * as it finds appropriate under the circumstances existing at the time application for that purpose is made to it' (22 NYCRR 699.9Approved Forms For Matrimonial Judgments, J13). The order of the Appellate Division, 81 A.D.2d 605, 437 N.Y.S.2d 711, affirming Special Term's order changing custody to the father should, therefore, be affirmed, without costs.

The parties were married in 1968. An uncontested divorce was awarded plaintiff wife after inquest, by judgment dated July 24, 1979. The separation agreement entered into by them provided that as to the two children of the marriage, Lisa and Nicole, the husband and wife would have joint custody ^* with the children residing with the wife and reasonable visitation rights to the husband. It provided further that the terms of the agreement would survive a judgment of divorce 'without merging, other than child support which shall merge in said decree.' The judgment of divorce provided that the parties have joint custody of the children, the father to have visitation as provided in the separation agreement, and that the agreement should survive and not merge in the judgment. It also contained the retention of jurisdiction provision (Approved Forms, J13) required by Appellate Division rule.

In September, 1979, the mother, who had been living with the children on Long Island close to the residence of the father, moved with the children to an apartment on East 93rd Street in Manhattan. Both parties and the children have been reared as Orthodox Jews, strictly observing both the Sabbath and the dietary laws. The children, who had attended a yeshiva on Long Island, were transferred to a yeshiva in Manhattan. Less than a year after the original judgment, in April, 1980, the father moved for modification of the judgment of divorce so as to award him sole custody of his daughters. The mother cross-moved for sole custody. After a trial during which the mother, father and both children testified, the Trial Judge found the father to be 'a loving and caring person * * * well qualified as a fit parent.' He foun that the mother, while not unfit, was less fit to have custody than the father because her own best interests and social life appeared to be of 'paramount concern to her, to the total exclusion of the best interest of her children.' He predicated that conclusion on the mother having frequently left her then 11- and 8-year-old girls alone in the apartment until late at night when she went out for the evening even though the children informed her that they were afraid to stay alone, and on the mother's profession of raising the children in the tenets of Orthodox Judaism while at the same time flagrantly violating those tenets by permitting a male friend to stay in the apartment and share her bed to the knowledge of the children, by failing, except rarely, to take the children to Sabbath services, and by permitting the male friend to violate the Sabbath by turning on the television, all of which confused the children and was contrary to their religious beliefs and detrimental to their religious feeling. Noting the older daughter's strong desire to live with her father and the younger child's wish to continue living with her mother but not to be separated from her sister, the Trial Judge acknowledged that the wishes of the children was an element to be considered, but held it controlled in this instance by the overriding considerations above detailed. He therefore modified the judgment to award custody of both children to the father.

The Appellate Division by a divided court modified in a respect not material to our determination and affirmed Special Term's order. The majority found the Trial Judge's conclusion that custody in defendant would serve the best interests of the children to be supported by the evidence. The dissenter, interpreting our decisions in Corradino v. Corradino, 48 N.Y.2d 894, 424 N.Y.S.2d 886, 400 N.E.2d 1338 and Matter of Nehra v. Uhlar, 43 N.Y.2d 242, 401 N.Y.S.2d 168, 372 N.E.2d 4 as holding that custody 'pursuant to an agreement should not be transferred absent extraordinary circumstances' (81 A.D.2d, p. 606, 437 N.Y.S.2d 711) of which he found no evidence in the record, voted to reverse and deny the father's motion. The mother's appeal to us presents the question of law whether extraordinary circumstances are required as the dissent suggested. We affirm.

The only absolute in the law governing custody of children is that there are no absolutes. The Legislature has so declared in directing that custody be determined by the circumstances of the case and of the parties and the best interests of the child, but then adding 'In all cases there shall be no prima facie right to the custody of the child in either parent' (Domestic Relations Law, § 240; see, also, § 70). Because the section speaks to modification as well as to an original matrimonial judgment, 'all cases' must be read as including both. That, or course, does not mean that custody may be changed without regard to the circumstances considered by the court when the earlier award was made but rather that no one factor, including the existence of the earlier decree or agreement, is determinative of whether there should, in the exercise of sound judicial discretion, be a change in custody.

Indeed, in Matter of Nehra v. Uhlar, 43 N.Y.2d 242, 401 N.Y.S.2d 168, 372 N.E.2d 4, supra, we were at pains to point out many of the factors to be considered and the order of their priority. Thus, we noted that 'Paramount in child custody cases, of course, is the ultimate best interest of the child' (p. 248, 401 N.Y.S.2d 168, 372 N.E.2d 4), that stability is important but the disruption of change is not necessarily determinative (pp. 248, 250, 401 N.Y.S.2d 168, 372 N.E.2d 4), that the desires of the child are to be considered, but can...