Haag v. Haag

• Decision Date: 28 November 1983
• Citation: 469 N.Y.S.2d 15,97 A.D.2d 833
• Parties: Charles F. HAAG, Appellant, v. Eleanor C. HAAG, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 15

469 N.Y.S.2d 15

97 A.D.2d 833

Charles F. HAAG, Appellant, v. Eleanor C. HAAG, Respondent.

Supreme Court, Appellate Division,

Second Department.

Nov. 28, 1983.

Jerome F. Matedero, Carle Place, for appellant.

Before BRACKEN, J.P., and BROWN, NIEHOFF and BOYERS, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action, the plaintiff husband appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County, entered December 2, 1982, as denied his application to modify a judgment of divorce to grant him custody of one of the children of the parties' marriage, and to suspend child support payments to defendant wife for that child.

Order affirmed insofar as appealed from, without costs or disbursements.

After the father's visitation period with the subject child expired, the plaintiff kept his son in New York and brought on the instant application seeking a change of custody and suspension of child support payments. Pending determination of the application plaintiff was awarded custody of the parties' son and child support payments for that child were suspended. Thereafter, Special Term, without a hearing, determined, inter alia, that it was without subject matter jurisdiction to entertain the application, that custody of the infant was to be returned to the mother in Virginia forthwith and that plaintiff was to be responsible for child support payments to the mother while the child was in his temporary custody.

We affirm that determination. From the record it is clear that New York does not have jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA) as codified in article 5-A of the Domestic Relations Law (Domestic Relations Law, § 75-d). Virginia being the child's "home state", and there being no showing that the child had been abandoned or that it was necessary for New York to exercise jurisdiction to protect the child because of an emergency, subject matter jurisdiction in this matter could exist only if "it is in the best interests of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is within the jurisdiction of the court substantial evidence concerning the child's present or future care, protection, training, and personal relationships" (Domestic Relations Law, § 75-d, subd. 1, par. [b] ). (See Gomez v. Gomez, 56 N.Y.2d 746, 452 N.Y.S.2d 13, 437...