Lewis v. Lewis

• Decision Date: 02 December 1957
• Citation: 5 A.D.2d 674,168 N.Y.S.2d 473
• Parties: In the Matter of Audrey LEWIS, appellant, v. Edward LEWIS, respondent.
• Court: New York Supreme Court — Appellate Division

Page 473

168 N.Y.S.2d 473

5 A.D.2d 674

In the Matter of Audrey LEWIS, appellant, v. Edward LEWIS, respondent.

Supreme Court, Appellate Division, Second Department.

Dec. 2, 1957.

Reargument Denied Jan. 13, 1958. See 169 N.Y.S.2d 1014.

Joseph D. Stim, Plainview, for appellant.

Otto B. Schmidt, New York City, William E. Lotz, Mineola, for respondent.

Before WENZEL, Acting p. J., and BELDOCK, MURPHY, UGHETTA, and HALLINAN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding instituted in the Children's Court of Nassau County by appellant, the mother of two infant children, against respondent, their father, to obtain fair and reasonable support for the children, an order was entered directing the father to pay $300 monthly to the mother for support of the children and to pay all reasonable and necessary medical, surgical and hospital expenses incurred in behalf of the children in excess of $100 a year. The father appealed to the Supreme Court, Nassau County, which reversed the findings and order and vacated the order. The instant appeal is by the mother from the order of reversal, and she seeks to bring up for review an order of the Supreme Court, entered the same date as the order of reversal, denying her motion to dismiss the appeal from the order of the Children's Court and to vacate the notice of argument on the ground that the father had not served and settled the case on appeal.

Orders unanimously affirmed, without costs.

On May 2, 1955 the parties, represented by counsel, entered into a separation agreement which provided in part that the mother waived all claims for her support and maintenance, that the father would pay $150 monthly for the support of the two infant children and all medical, surgical and hospital expenses incurred in behalf of the children in excess of $100 yearly. The father was given visitation rights and custody on week ends and during his vacation, not to exceed one month. On May 9, 1955 a decree was entered in an Alabama court which granted the mother a divorce and incorporated an agreement between the parties dated May 9, 1955. That agreement provided that no alimony would be payable to the mother and contained provisions similar to those contained in the separation agreement of May 2, 1955 relating to the support of the children. The father complied with the terms of the decree and voluntarily made gifts to the children and spent money for their welfare. On October 11, 1955 the mother filed the petition in the Children's Court heretofore mentioned.

The Children's Court has power to order a father to furnish support for his children in excess of the amounts provided for in a foreign divorce decree which incorporated a separation agreement, without proof that the children are delinquent, neglected, abandoned or likely to become public charges, if the State in which the divorce decree was entered permits its courts to modify their divorce decrees insofar as they deal with the support of infant children. The full faith and credit clause of the Federal Constitution, Const. art. 4, § 1, does not preclude such a petition for additional support in the Children's Court (New York Const. art. VI, § 18; Children's Court Act, §§ 6, 30, 30-a, subd. 1; Langerman v. Langerman, 303 N.Y. 465, 104 N.E.2d 857; Karchmer v. Kane, 275 App.Div. 715, 87 N.Y.S.2d 81; Matter of Robertson, 242 App.Div. 798, 275 N.Y.S. 657; see, e. g., People of State of New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133; People ex rel. Wagstaff v. Matthews, 168 Misc. 188, 5 N.Y.S.2d 516, affirmed 255 App.Div. 866, 7 N.Y.S.2d 1008; La Rocca v. La Rocca, 144 Misc. 737, 259 N.Y.S. 569). The courts of Alabama have power to modify their divorce decrees, insofar as they provide for permanent alimony payable in monthly installments, because of changed conditions of the parties regardless of whether powers of modification were reserved in the decrees (Aiken v. Aiken, 221 Ala. 67, 127 So. 819; Garlington v. Garlington, 246 Ala. 665, 22 So.2d 89) but those courts will not modify decrees fixing alimony in accordance with the agreement of the parties except for clearly sufficient reasons, and applications therefor will be subjected to thorough investigation (Tidmore v. Tidmore, 248 Ala. 150, 26 So.2d 905).

While the Children's Court could not direct the father to provide support for his divorced wife, the children should not be deprived of support solely on the theory that their mother, with whom they live and who cares for them, might benefit incidentally by larger contributions from the children's money towards the joint and indivisible household maintenance charges (see, e. g., Langerman v. Langerman, 203 Misc. 230, 116 N.Y.S.2d 420). The court could properly consider the needs and circumstances of the mother insofar as they affected the welfare and support of the children (Children's Court Act, § 30-a, subd. 1; Karchmer v. Kane, supra; Bobinski v. Bobinski, 285 App.Div. 836, 137 N.Y.S.2d 432).

There was no evidence as to the value of the real property owned by the mother. There was no proof that the children were delinquent, neglected, abandoned or likely to become public charges. There was no showing of change in the conditions...