Jacqueline F., Matter of

• Decision Date: 10 April 1978
• Citation: 404 N.Y.S.2d 790,94 Misc.2d 96
• Parties: In the Matter of JACQUELINE F., an infant. Surrogate's Court, Bronx County
• Court: New York Surrogate Court

Page 790

404 N.Y.S.2d 790

94 Misc.2d 96

In the Matter of JACQUELINE F., an infant.

Surrogate's Court, Bronx County.

April 10, 1978.

Michael D. Hampden, New York City, The Legal Aid Society, for petitioner; M. Madeline Welch, New York City, of counsel.

Emilio P. Gautier, New York City, Bronx Legal Aid Corp. C., for respondent; Philip C. Segal, New York City, of counsel.

BERTRAM R. GELFAND, Surrogate.

This is an application to punish respondent, former guardian of the infant, for contempt for failing to obey a decree of this court entered on July 1, 1977, which revoked her letters of guardianship of the person of the infant and directed her to forthwith return custody of the child to her parents. The decree of July 1, 1977 was unanimously affirmed by an order of the Appellate Division entered November 10, 1977. Leave to appeal to the Court of Appeals was denied. A stay of the July 1, 1977 order expired on November 24, 1977 due to the service of the order of the Appellate Division with notice of entry upon respondent (CPLR 5519(e)). It is not contended that any further stay was ever granted by any court.

Petitioner in this application is the infant's mother. In addition to the former guardian the application names as a respondent the attorney for the former guardian. As against him an order is sought directing said attorney to disclose the whereabouts of respondent and the infant.

Respondent, former guardian, having removed herself and the infant from the address filed in this court in the guardian proceeding, petitioner with due diligence has been unable to personally serve process upon her. No application for substituted service was presented. Accordingly, the application against the respondent, former guardian, must be dismissed. The only issues remaining relate to the respondent-attorney.

The attorney concedes that his client failed to obey the decree of the court directing that custody of the infant be returned to the parents. He candidly concedes that he believes that he knows the present whereabouts of his client and the infant. Nevertheless, he opposes divulging this information on the ground that it is privileged under CPLR 4503(a). He also contends that he has the right to remain mute because the Surrogate's Court lacked jurisdiction to make a determination as to custody and therefore, the court's decree with regard to the custody of the infant was a nullity.

The question of jurisdiction to direct a change in custody upon the revocation of letters of guardianship is raised before this court for the first time in respondent's opposition to this application. In fairness to respondent the court has endeavored to fully research the issue. This research suggests that the authority in support of his position is minimal and essentially distinguishable.

The Appellate Division, Third Department, in People ex rel. Charbonneau, 34 A.D.2d 1034, 310 N.Y.S.2d 871, held that when a habeas corpus petition is instituted in the Supreme Court to regain custody of a child, an ab initio hearing should be conducted, even after a previous hearing in Surrogate's Court involving the same parties had granted letters of guardianship to one of them. This decision does not indicate that such multiple proceedings are essential, but merely if instituted each court should hold its own hearing.

Matter of Cuddihy, 8 Misc.2d 450, 453, 169 N.Y.S.2d 89, 90, reaches a conclusion in reliance upon Matter of Lee, 220 N.Y. 532, 116 N.E. 352, indicating that the learned Surrogate in that 1957 decision concluded that the Surrogate's Court should not issue an order directing custody. This conclusion predated the enactment of the present Article VI of the New York State Constitution. It is further respectfully concluded that the reliance on Matter of Lee, in reaching said conclusion was misplaced. In Matter of Lee, supra, two weeks after the Supreme Court had awarded custody to one party, a guardian proceeding was instituted in the Surrogate's Court which resulted in another person being appointed guardian of the person of the infant. The guardian appointed by the Surrogate thereafter seized the infant upon the streets without the benefit of any court order authorizing such action. The Court of Appeals resolved the conflicting orders with the following language:

The Supreme Court and the Surrogate's Court have concurrent jurisdiction in many respects, and the seemly administration of the law demands that their orders do not conflict (Garlock v. Vandevort, 128 N.Y. 374, 28 N.E. 599; Schuehle v. Reiman, 86 N.Y. 270; Sloan v. Beard, 125 App.Div. 625, 110 N.Y.S. 1; Platt v. N. Y. & Sea Beach Ry. Co., 170 N.Y. 451, 458, 63 N.E. 532; Silver & Co. v. Waterman, 127 App.Div. 339, 111 N.Y.S. 546; Mugler v. Castleton Hotel & Realty Co., 168 App.Div. 492, 153 N.Y.S. 1025.)

We, therefore, hold that while the surrogate had full jurisdiction to appoint De Witt H. Lyon general guardian of the person and property of William Crossman Lee, yet the guardian should not have taken the boy out of the possession of the Lees, which was the possession of the Supreme Court, without application to that court. We by no means intimate that the decision of the surrogate upon this matter was incorrect or that the Lees are fit persons to have the custody of the boy. We go no further than to rule upon a point of conflicting procedure in order that such difficulties may not arise again." (220 N.Y. 539, 116 N.E. 352, 355 (emphasis added)).

It appears that the essential question before the Court of Appeals in Matter of Lee, supra, and the issue which was resolved therein was one created by conflicting orders of different courts exercising concurrent jurisdiction over the same subject matter. It was not a determination that had the Surrogate's Court been the only court exercising jurisdiction it would not have the requisite authority to grant the litigants final and meaningful relief. The subsequent cases in which Matter of Lee has been cited rely upon it for the proposition that when different courts have concurrent jurisdiction their orders should not conflict and the second court should defer to the first (Matter of Burde, 7 A.D.2d 344, 346, 183 N.Y.S.2d 511, 513, aff'd 6 N.Y.2d 941, 190 N.Y.S.2d 1008, 161 N.E.2d 219; People ex rel. Hahn v. Haines, 1 A.D.2d 263, 267, 149 N.Y.S.2d 407, 410, aff'd 1 N.Y.2d 835, 153 N.Y.S.2d 218; Matter of Gilmore, 264 App.Div. 172, 174, 35 N.Y.S.2d 302, 304; People ex rel. Glendening v. Glendening, 259 App.Div. 384, 387, 19 N.Y.S.2d 693, 696, aff'd 284 N.Y. 598, 29 N.E.2d 926; Matter of Fisher (Volkmar), 254 App.Div. 225, 227, 5 N.Y.S.2d 188, 189, aff'd 279 N.Y. 797, 19 N.E.2d 92; Matter of Farmers' Loan & Trust Co., 123 Misc. 600, 602, 205 N.Y.S. 895, 896, holding that the Supreme Court should not accept jurisdiction over any matter relating to the property of an infant, when the Surrogate had first exercised jurisdiction on this subject). Moreover, in Matter of Berman v. Berman (169 Misc. 921, 925, 8 N.Y.S.2d 499, 503) and Matter of De Saulles (101 Misc. 447, 450, 465, 167 N.Y.S. 445, 447, 455), the courts cited Matter of Lee, supra, and concluded that the Surrogate's Court in a proper case may make directions concerning the custody of an infant (See also: Matter of Krayem, 177 Misc. 842, 844, 32 N.Y.S.2d 70, 72, wherein the Surrogate expressly invited co-guardians of the infant to make application to the court if they could not agree upon a reasonable division of actual custody of the infant). Accordingly, it appears that a correct reading of Matter of Lee, supra, not only fails to support the position that a Surrogate may not make a direction as to custody in a guardianship proceeding pending before it, but by necessary implication stands for the proposition that for many years it has been the law of this State that the Surrogate has such power.

Moreover, under the present Constitution of the State of New York and the existing statutory framework, the jurisdiction of the Surrogate's Court has been significantly expanded in the more than 60 years that have elapsed since the decision was rendered in Matter of Lee, supra. A multiplicity of issues which were previously deemed to be outside the ambit of the Surrogate's Court jurisdiction or incapable of being determined in a particular proceeding are presently being adjudicated in the Surrogate's Court (Maki v. Estate of Ziehm, 55 A.D.2d 454, 391 N.Y.S.2d 705, modf'g and affm'g 79 Misc.2d 467, 360 N.Y.S.2d 391; Matter of Abraham L., 53 A.D.2d 669, 385 N.Y.S.2d 103; Matter of Horton, 51 A.D.2d 356, 379 N.Y.S.2d 569; Dunham v. Dunham, 40 A.D.2d 912, 337 N.Y.S.2d 728; Matter of Benjamin, Sur.Ct., 403 N.Y.S.2d 877; Matter of Deitch, Sur., 401 N.Y.S.2d 732; Matter of Reed, 91 Misc.2d 997, 399 N.Y.S.2d 101; Matter of Finkle, 90 Misc.2d 550, 395 N.Y.S.2d 343; Matter of London, 90 Misc.2d 351, 395 N.Y.S.2d 343; Matter of Fornason, 88 Misc.2d 736, 389 N.Y.S.2d 1003; Matter of Frohlich, 87 Misc.2d 518, 385 N.Y.S.2d 922; Matter of Reiner, 86 Misc.2d 511, 383 N.Y.S.2d 504; Matter of Zalaznick, 84 Misc.2d 715, 375 N.Y.S.2d 522; Matter of Young, 80 Misc.2d 937, 365 N.Y.S.2d 695; Matter of Gebauer, 79 Misc.2d 715, 361 N.Y.S.2d 539, aff'd 51 A.D.2d 643, 378 N.Y.S.2d 653; Matter of Goldstein, 79 Misc.2d 4, 358 N.Y.S.2d 923; Matter of Raana Beth N., 78 Misc.2d 105, 355 N.Y.S.2d 956; Matter of Rungo, 74 Misc.2d 239, 342 N.Y.S.2d 929; Matter of Robles, 72 Misc.2d 554, 339 N.Y.S.2d 171; Matter of Rothko, 69 Misc.2d 752, 330 N.Y.S.2d 915; Matter of Lurje, 64 Misc.2d 569, 315 N.Y.S.2d 476; Matter of Dunham, 63 Misc.2d 1029, 314 N.Y.S.2d 29, aff'd 36 A.D.2d 467, 320 N.Y.S.2d 951, mot. for lv. to app. den., 29 N.Y.2d 485, 325 N.Y.S.2d 1025, 274 N.E.2d 753; Matter of Ryan, 63 Misc.2d 415, 311 N.Y.S.2d 719; Matter of Chusid, 60 Misc.2d 462, 301 N.Y.S.2d 766, aff'd 35 A.D.2d 655, 314 N.Y.S.2d 354; Matter of Mac Elroy, 58 Misc.2d 93, 294 N.Y.S.2d 706). The Constitution permits the Legislature to confer...