Hahn v. Falce

Decision Date05 March 1968
Citation289 N.Y.S.2d 100,56 Misc.2d 427
PartiesMartin HAHN, Petitioner, v. Pearl FALCE and Renee Irakles, Renee Rackles, the person intended being the mother of Susan Hahn and Hannah Hahn, Respondents.
CourtNew York City Court

William M. Gruner, Highland, for petitioner.

Michael Nardone, Highland, for respondent.

HUGH R. ELWYN, Judge.

By writ of habeas corpus which has been referred by the Supreme Court to this Court for hearing and determination the petitioner seeks to regain the custody of his two daughters, Susan, age 10 and Hannah, age 3 from his former wife, Renee Irakles who on December 9, 1967 brought the children from their father's home in Memphis, Tennessee, to her mother's home in Wallkill, New York.

At the trial a sharp issue of fact developed as to whether the respondent brought the children to her mother's home in New York State with or without the petitioner's consent, the respondent contending that she brought the children to New York with the petitioner's approval and consent, whereas the petitioner contends that his children were taken from their home in Memphis, Tennessee, without his consent. However, since a resolution of this custody contest does not turn on a determination of whether the children were brought to New York with or without their father's consent, the conflict in the testimony on this score need not be resolved.

Indeed, the long and sorry history of the many bitter disputes and unhappy differences, stemming largely from financial insecurity which plagued this marriage and poisoned the parties' relationship both before and after marriage and which finally culminated in divorce, while interesting and informative as background material is, under the circumstances of this case, of no great legal significance to the determination of the custody of these children. However, in so far as there were differences of detail with respect to their marital relationship, the circumstances leading up to and surrounding their divorce and the wife's surrender of the children to her husband at the time of the divorce, I am more inclined to credit the husband's version of these events than the wife's, for he at least didn't have to confess perjury on the witness stand. While there were times when the Court felt that neither party was being completely candid, the wife completely shattered her credibility when she was constrained to admit under oath that the petitioner was the natural father of her children and that in asserting in her verified answer to the petition that he was not the father of her children she had sworn falsely. Thus it plainly appears that in order to retain custody of her children the respondent was willing not only to commit perjury, but was also willing to bastardize her own children.

The petitioner predicates his right to the custody of his two daughters upon a final decree of divorce rendered in the Circuit Court of Shelby County Tennessee on May 10, 1965 wherein the parties were divorced and the exclusive care and custody of the children born of this union, Susan Hahn, Stephen Hahn * and Hannah Hahn were adjudged and decreed to the cross-complainant, Martin Hahn, the petitioner herein with the right however, in the cross-defendant, Renee Irakles, to see and be with the children at all reasonable times.

Although the respondent contends that she was emotionally upset and distraught at the time of the divorce because of her dire financial circumstances due to the petitioner's refusal to supply her with money for her and the children's support and that she placed the children temporarily in the petitioner's custody with the understanding that they would be returned to her when she regained her strength and health, she does not question the validity of the Tennessee divorce or the jurisdiction of the Tennessee Court to grant the same. Instead she contends that her marriage to the petitioner on February 8, 1962, nearly five years after the birth of their first daughter, Susan on March 19, 1957 was invalid and void, because at the time of the marriage the petitioner had a wife living from whom he was not divorced. From these facts the respondent argues that since her marriage to the petitioner was void, her children by the petitioner are illegitimate, the petitioner as the putative father of out of wedlock children has no right to their custody and that she as their natural mother has the sole and exclusive right to their custodyergo, the Court should award her custody of the children.

Apparently recognizing that there is a strong presumption in favor of the validity of a ceremonial marriage and that it is not incumbent upon those asserting a marriage to prove that an earlier marriage was terminated by death, annulment or divorce, but rather that in the case of conflicting marriages of the same spouse the burden of showing the existence and continuity of the first marriage is on the party asserting it (Kopit v. Zilberszmidt, Sup., 35 N.Y.S.2d 558, 566--567; Brown v. Brown, 51 Misc.2d 839, 274 N.Y.S.2d 484; Matter of Case v. Case, 54 Misc.2d 20, 281 N.Y.S.2d 241) the respondent sought to show that the petitioner's marriage to his first wife was still subsisting at the time of her marriage to him in 1962 because of the invalidity of an Alabama divorce the petitioner had procured from his first wife in 1961. The Alabama divorce is said to be invalid because neither the petitioner nor his former wife, Sylvia Hahn were residents of the State of Alabama at the time the divorce was procured.

The respondent did offer some proof which made it appear extremely doubtful that the petitioner could have been a bona fide resident of the State of Alabama for one year as required by Alabama law prior to the commencement of the divorce action, but failed to introduce into evidence the Alabama decree. The petitioner admits that he was previously married but asserts that he procured a divorce from his first wife in the State of Alabama prior to his marriage to the respondent in Tennessee in 1962. Relying upon the presumption of validity of his ceremonial marriage to the respondent and the full faith and credit which this Court must accord to the Alabama divorce decree, the petitioner made no effort to meet the respondent's attack on the validity of his Alabama divorce.

In support of her contention that she may collaterally attack the validity of her husband's Alabama divorce by showing that at the time of its procurement he was not a resident of the State of Alabama the respondent cites Bard v. Bard, 16 A.D.2d 801, 228 N.Y.S.2d 294; Sommer v. Sommer, 36 Misc.2d 379, 232 N.Y.S.2d 558 and Wasserman v. Wasserman, 49 Misc.2d 577, 268 N.Y.S.2d 200. The cases of Bard v. Bard, supra and Sommer v. Sommer, supra are readily distinguishable. The holding in Bard (p. 802, 228 N.Y.S.2d p. 295) that 'the courts of this State are not required to give full faith and credit to a foreign divorce decree where the plaintiff * * * was not a permanent resident of the foreign state' is coupled with the additional proviso 'and where the appearance on behalf of the defendant spouse either was not authorized or was procured through fraud, coercion or duress.' In Sommer the Court recognizes (p. 380, 232 N.Y.S.2d p. 560) 'that under certain circumstances a decree of divorce of a sister state may be collaterally attacked in our courts' by 'accepting the premise that there can be a collateral attack on the Alabama decree upon proper allegations of an enticement into the foreign jurisdiction by fraud, coercion and duress'. There is in this case neither allegation nor proof that the defendant spouse's appearance in the Alabama Court was either unauthorized or procured by fraud, coercion or duress.

The case of Wasserman v. Wasserman, supra (p. 578, 268 N.Y.S.2d p. 201) recognizes that 'a collateral attack on that (Alabama) decree may only be permitted in this State if such is permitted in Alabama.' To the extent that the case finds 'that such a collateral attack is permitted in Alabama', citing Smith v. Smith, 247 Ala. 213, 23 So.2d 605, its finding is completely at variance with the more recent Court of Appeals decision in Weisner v. Weisner, 17 N.Y.2d 799, 802, 271 N.Y.S.2d 252, 254, 218 N.E.2d 300, 301, where the Court said: 'The Alabama law is not clear concerning whether, under the circumstances of this case, its courts would permit such a collateral attack upon plaintiff's divorce as is made in this action' citing Fairclough v. St. Amand, 217 Ala. 19, 114 So. 472; Davis v. Davis, 255 Ala. 488, 51 So.2d 876; Hartigan v. Hartigan, 272 Ala. 67, 128 So.2d 725; Aiello v. Aiello, 272 Ala. 505, 133 So.2d 18; Winston v. Winston, 276 Ala. 303, 161 So.2d 588; Lutsky v. Lutsky, 279 Ala. 185, 183 So.2d 782. The Court eliminated from the order appealed from the annulment granted to defendant against plaintiff upon the ground that plaintiff's Alabama divorce from her previous husband can only be attacked in the Courts of Alabama.

Following its decision in Weisner, a year later the Court of Appeals in Magowan v. Magowan, 19 N.Y.2d 296, 279 N.Y.S.2d 513, 226 N.E.2d 304, a case in which a husband who was sued for a separation counterclaimed for an annulment claiming his wife's Alabama divorce from her first husband to be jurisdictionally void, said (p. 299, 279 N.Y.S.2d p. 514, 226 N.E.2d p. 305): 'It is settled that when, as in the present case, both parties to an out-of-state divorce appeared in those divorce proceedings, a stranger to the decree may collaterally attack it in our courts only if he establishes that the rendering State permits such an attack (see, e.g. Weisner v. Weisner, 17 N.Y.2d 799, 271 N.Y.S.2d 252, 218 N.E.2d 300; Goldsmith v. Goldsmith, 19 N.Y.2d 710, 279 N.Y.S.2d 172, 225 N.E.2d 879; Johnson v. Muelberger, 340 U.S. 581, 587, 71 S.Ct. 474, 95 L.Ed. 552; Cook v. Cook, 342 U.S. 126, 128, 72 S.Ct. 157, 96 L.Ed. 149).' The defendant having failed to meet the burden...

To continue reading

Request your trial
12 cases
  • La Croix v. Deyo
    • United States
    • New York Family Court
    • 4 Noviembre 1981
    ...People ex rel. Glendening v. Glendening, 259 App.Div. 384, 19 N.Y.S.2d 693, affd. 284 N.Y. 598, 29 N.E.2d 926; Matter of Hahn v. Falce, 56 Misc.2d 427, 434-435, 289 N.Y.S.2d 100). ...
  • Borges v. Borges
    • United States
    • New York Family Court
    • 18 Enero 1974
    ...A.D.2d 684, 314 N.Y.S.2d 637; People ex rel. Abajian v. Dennett, 15 Misc.2d 260, 265, 184 N.Y.S.2d 178, 184; Matter of Hahn v. Falce, 56 Misc.2d 427, 433, 289 N.Y.S.2d 100, 106; Matter of Haines v. Haines, 56 Misc.2d 440, 445, 288 N.Y.S.2d 957, 962; See also Family Court Act, § 654; 16 N.Y.......
  • Salk v. Salk
    • United States
    • New York Supreme Court
    • 28 Octubre 1975
    ...700; Bullotta, supra. The courts must be aware that children can be influenced to state a particular preference. Hahn v. Falce, 56 Misc.2d 427, 289 N.Y.S.2d 100 (1968); Glendeing, supra; Armour, The court is convinced that the children have expressed their desires freely and with unusual in......
  • Pact v. Pact
    • United States
    • New York Family Court
    • 13 Marzo 1972
    ...897, 54 N.Y.S.2d 747; People ex rel. Fields v. Kaufmann, 27 Misc.2d 625, 207 N.Y.S.2d 870). The court stated in Hahn v. Falce, 56 Misc.2d 427, 435, 289 N.Y.S.2d 100, 109 that: 'Any other policy would be practically to abandon the jurisdiction of the Court and make the child the sole judge o......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT