Hicks v. Bridges

• Decision Date: 02 October 1956
• Citation: 2 A.D.2d 335,155 N.Y.S.2d 746
• Parties: In the Matter of the Petition of Nancy HICKS, Petitioner-Appellant, v. Harry BRIDGES, Respondent-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 746

155 N.Y.S.2d 746

2 A.D.2d 335

In the Matter of the Petition of Nancy HICKS, Petitioner-Appellant, v. Harry BRIDGES, Respondent-Respondent.

Supreme Court, Appellate Division, First Department.

Oct. 2, 1956.

Arthur M. Borden, New York City, of counsel (Borden & Ball, New York City, attys.), for petitioner-appellant.

Herman Rosenfeld, New York City, of counsel (William L. Standard, New York City, atty.), for respondent-respondent.

Before PECK, P. J., and BREITEL, BOTEIN, RABIN and COX, JJ.

BREITEL, Justice.

Petitioner, the mother of a girl aged 13 and a boy aged 8, appeals from dismissal of her petition, at Special Term, in which she sought determination 'fixing the residence of the children in the State of New York' with appropriate provision for visitation with such children by her former husband. The respondent in the proceeding is the former husband and the father of the two children. The issue in the case is whether the courts of this state have the power to, and, if they do, should they, entertain jurisdiction of the special proceeding in the interests of the welfare of the children. The history of the family and prior legal determinations affecting custody of the children were obtained under agreements and judgments rendered in the states of California and Nevada. Significant in the case is the absence of any dispute between the parents as to the sharing of time in the custody and visitation with the children, and the presence of very sharp dispute over whether the children must remain in California or whether they may be permitted to remain in the State of New York.

The problem arises from the divorce of the parents and the subsequent remarriage of the mother. The second husband has brought the family, that is, his wife and her two children by the prior marriage, to New York where he has obtained a position of promise.

The parents and the children were long-time residents of California. In 1954, while still in California, they entered into a property settlement agreement which provided, among other things, that the children should remain with the mother. She also agreed that she would not remove them from the City of San Francisco in the State of California, without the consent in writing of the husband, or without moving in the Superior Court of the State of California for an order authorizing such removal.

In early 1955, the mother obtained a consent divorce decree in the State of Nevada. The agreement between the former husband and wife was not incorporated in the divorce decree, but that decree did award custody of the children to the mother. Shortly thereafter, the mother married on Hicks and lived with him in San Francisco with her two children.

Hicks had been a California resident but had been employed in New York for some time. After the new family lived together in California for some ten months, it is averred, he found it difficult to maintain steady employment. Later in 1955, he received and accepted the opportunity for a promising position with his former employer in New York. Before the year was out, the entire family, the mother, the second husband and the two children, moved to New York where they now are. Neither the consent of the father nor the approval of the California courts was obtained in effecting that removal.

Except for a short interval, the father had supported the children. During the interval of non-support the mother brought an action in California which resulted in the father bringing the payments up to date. This action, however, has additional significance in this case; for, after the new family had removed from California to New York, the father moved in that action for judgment specifically enforcing the agreement between the parents requiring the children to reside in California. Summary judgment on default was obtained in favor of the father. That judgment is now the subject of an appeal by the mother in California. The situation then is that the father is seeking through legal proceedings in California to require the continued residence of the children in that state. The mother, by this special proceeding, has sought to prevent the removal of the children from New York on the ground that the economic opportunities of the new family are restricted to New York; that the children's best interests require their continued residence in New York; and that the father's purpose is primarily to destroy the second marriage and the family based upon it. In that connection, the mother avers, the children are anxious to remain in New York; their successful adjustment to schooling in New York requires their maintenance here; and the children, particularly the daughter, are seriously disturbed by the prospect of being required to reside in California.

The father, respondent herein, contends that there is no authority for a special proceeding of this kind. There is no dispute that special proceedings in equity, as an alternative to habeas corpus, may lie where the custody of children is in dispute. But, the father contends there is no issue as to custody and, hence, there is no warrant for the special proceeding.

This issue is easily resolved. It is ancient law that matters affecting the health and welfare of children may be brought before the court on petition in equity. This is a summary jurisdiction which stems from the Chancellor in England and the chancery courts in this state prior to 1846. The leading case expressing this proposition is Finlay v. Finlay, 240 N.Y. 429, 148 N.E. 624, 40 A.L.R. 937, although the principle was an undisputed one long before that case. Wilcox v. Wilcox, 14 N.Y. 575. While it is true that most cases which have arisen, including the Finlay and Wilcox cases, involved the custody of children, adjudication has always been expressed as based on the broad jurisdiction of all matters affecting the health and welfare of children, and the presence of the power to direct whatever was necessary to accomplish that objective. See generally, 3 Story's Eq.Jurispr. [14th Ed.], Ch....