Herb v. Herb
| Decision Date | 09 July 1959 |
| Parties | Maxine HERB, Respondent-Appellant, v. Joseph HERB, Appellant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Michael P. Geraci, Buffalo, for respondent-respondent.
Benjamin L. Berger, Buffalo, for appellant-respondent.
Before McCURN, P. J., and KIMBALL, WILLIAMS, BASTOW and HALPERN, JJ.
In 1946 plaintiff was granted a decree annulling the marriage between her and the defendant. The custody of an infant daughter was awarded to plaintiff and defendant was directed to pay a stated amount monthly for the support of the child. The decree contained no provision giving defendant visitation rights. In this proceeding plaintiff sought, among other things, the following relief: (1) to punish defendant for contempt, in failing to make the payments; (2) to direct the entry of a money judgment against defendant for the amount of the claimed arrearages; (3) to modify the judgment to increase the amount of future monthly payments.
The husband opposed the application. In an answering affidavit he alleged that he complied with the decree until plaintiff denied him the right to visit the child. He also alleged that the child was in the custody of plaintiff's mother; that the plaintiff lived in a separate apartment, worked in a bar 'wherein she spends considerable time over and above her normal working hours.' It is further alleged that plaintiff spends considerable time in Florida and at one time resided there continuously for three years. The defendant in substance requested custody of the child and asked for an investigation of the matter. There was thus presented to Special Term not only the subject of contempt and a money judgment but the paramount issue of the welfare of the child. When the proceeding was returned no testimony was taken but the parties through their respective attorneys stipulated that an investigation be made by a private agency. The court followed this stipulation by a letter to the agency in which it was stated that the 'report shall be confidential and not subject to perusal by any of the parties or by the attorneys.'
Subsequently the order appealed from was made. There is no reference therein to any report of the agency but both parties concede that the provisions relating to custody and visitation rights were based upon the confidential report to the court. The order continued custody with the mother and denied defendant all rights to visit or see the child or to have the child spend any summer vacation period with her father. Thus, the appeal in this court was argued in a vacuum. The confidential report of necessity is not in the record, neither party knows the contents thereof and therefore are not in a position to argue whether the decision was right or wrong.
We recognize the limitations and handicaps of the Supreme Court in passing upon such issues. It has no investigative or consultative staff. All of these deficiencies have been highlighted in recent years by those advocating the establishment of a State-wide Family Court. Thus, the Judicial Conference in its Recommendations for the Reorganization of the Courts made to the Governor on November 10, 1958, in recommending the establishment of such a court wrote as follows:
'There is almost unanimous sentiment in the State, both from legal and social agencies, that the proper disposition of matters affecting the family requires the establishment of a separate Family Court with broad jurisdiction and adequate ancillary services to deal property with the many facets of family problems in a uniform way throughout the entire State.' (Fourth Annual Report of New York Judicial Conference, 1959, p. 89.)
Until such time, however, as these proposed changes are made matters of custody of infants and visitation rights must be governed by recognized legal principles and procedures The action taken by Special Term can not be approved. 'To paraphrase the language of Judge Cardozo in Finlay v. Finlay, 240 N.Y. 429, 433-434, 148 N.E. 624, 626, 40 A.L.R. 937, the...
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Proceeding for Support under Article 4 of the Family Court Act, Matter of
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Kesseler v. Kesseler
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