Metz v. Morley

• Decision Date: 04 April 1968
• Citation: 29 A.D.2d 462,289 N.Y.S.2d 364
• Parties: In the Matter of Charles R. METZ, Appellant, v. Gilda MORLEY, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 364

289 N.Y.S.2d 364

29 A.D.2d 462

In the Matter of Charles R. METZ, Appellant, v. Gilda MORLEY, Respondent.

Supreme Court, Appellate Division, Fourth Department.

April 4, 1968.

Fleischer & Fitzer, Wellsville, for appellant (Norman B. Fitzer, Wellsville, of counsel).

George F. Francis, Cuba, for respondent.

Before WILLIAMS, P.J., and BASTOW, GOLDMAN, DEL VECCHIO, and MARSH, JJ.

OPINION

DEL VECCHIO, Justice.

Petitioner appeals from a judgment of Family Court which awarded custody of a ten year old child, Cindy Metz, to her mother in this habeas corpus proceeding instituted by her father, and which directed the father to pay support and medical expenses of the child.

The parties were married, lived and divorced in Pennsylvania. Prior to this proceeding their three children, Randy, Linda and Cindy, (who at the time of the hearing were 18, 15 and 10 years old respectively) always lived in Pennsylvania. Petitioner is a successful and prosperous contractor and gentleman farmer who has maintained a comfortable home for his family. The mother left the home briefly in January 1962 and again for a seven-month period beginning in the fall of the same year. After returning in March 1963 she left permanently in June of that year, taking her two daughters with her. She filed a complaint for divorce against her husband in the May 1963 term in Washington County, Pennsylvania. Linda, the older daughter, returned to her father's home after about two months absence and Cindy subsequently had an asthmatic attack, entered a hospital and went back to her father's residence on discharge. In October 1963 a decree was granted in the Court of Common Pleas of Washington County, Pennsylvania awarding custody of the three children to petitioner with visitation rights to the mother, who admitted in her pleading 'that the said father of the said children is a fit and proper person to have the general custody of said children and that the best interests and general and permanent welfare of the said children would be promoted by permitting the said children to remain with their said father'. On July 6, 1964 the parties executed an agreement incidental to the pending divorce action which referred to the custody order of October 1963, confirmed custody in the father, and provided a payment of $2500 together with an irrevocable trust in the amount of $25,000 to be paid in monthly installments of $250 for the mother. A decree of divorce for Indignities to the Person was granted to the mother by the Court of Common Pleas on August 7, 1964. This decree approved the property and custody agreement.

Thereafter, the three children remained with their father in Pennsylvania until April 21, 1967 when Cindy came to this state to visit her mother, who had married again and taken up residence in a house trailer in Allegany County with her present husband and his two children of a prior marriage. When the time came for her return home Cindy expressed such a strong desire to remain with her mother that she has not been returned to her father.

No attempt has been made by the mother to secure a modification of the Pennsylvania decree confirming custody of all three children in the father. Sometime after April 1967 the father was served with a summons in a custody proceeding in Pennsylvania (apparently commenced by the mother), but on the date set for the hearing the mother did not appear. Thereafter the father commenced this habeas corpus proceeding in the Supreme Court of this state to regain custody of Cindy and the matter was referred to the Family Court of Allegany County. In awarding custody of this child to the mother, Family Court found that 'there has been a substantial change of circumstances since the separation of the parties'.

Upon the record before us we conclude that the circumstances have not altered sufficiently to justify a change in custody of one of three children who, except for short intervals, has been in continuous custody of the father since the original separation in January 1962. While there is no doubt that the decree of the Pennsylvania court does not deprive the courts of this state of jurisdiction to alter custody of a child within the state, because 'The full faith and credit clause does not apply to custody decrees' (Matter of Bachman v. Mejias, 1 N.Y.2d 575, 580, 154 N.Y.S.2d 903, 907, 136 N.E.2d 866, 868), nevertheless that decree, rendered by a court with jurisdiction of the infant by reason of domicile, is entitled to 'willing recognition, except in extraordinary circumstances affecting the health and welfare of the children'. (Matter of Lang v. Lang, 9 A.D.2d 401, 409, 193 N.Y.S.2d 763, 770, affd. 7 N.Y.2d 1029, 200 N.Y.S.2d 71, 166 N.E.2d 861) On an application made in this state to determine permanent custody, a prior custody award made by a court of a sister state should not be disturbed unless it is shown that there has been 'an extraordinary intervening change in circumstances'. (Peo. ex rel. Sloane v. Sloane, 20 A.D.2d 862, 248 N.Y.S.2d 445, aff'd 15 N.Y.2d 561, 254 N.Y.S.2d 536, 203 N.E.2d 217) A mere improvement in the condition, status or character of the noncustodial parent does not warrant a change of custody, at least 'so long as the custodial parent has not been shown to be unfit, or perhaps less fit, to continue to serve as the proper custodian.' (Matter of Lang v. Lang, supra, 9 A.D.2d p. 409, 193 N.Y.S.2d p. 771; see also Matter of Berlin v. Berlin, 21 N.Y.2d 371, 288 N.Y.S.2d 44, 235 N.E.2d 109).

Bearing in mind the foregoing standards, the record fails to demonstrate a sufficient change in circumstances which is necessary to support a reversal of the custody award made by the Pennsylvania domiciliary court. Nothing was offered to show that the father was any less fit to have the children in...