Mouscardy v. Mouscardy
| Decision Date | 05 June 1978 |
| Citation | 405 N.Y.S.2d 759,63 A.D.2d 973 |
| Parties | In the Matter of Nicole MOUSCARDY, Appellant, v. Pierre MOUSCARDY, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Before TITONE, J. P., and SUOZZI, MARGETT and O'CONNOR, JJ.
MEMORANDUM BY THE COURT.
On the court's own motion, its decision and order (1049 E), both dated April 24, 1978, are vacated and recalled, and the following substituted decision is rendered:
In a custody proceeding, the appeal is from an order of the Family Court, Queens County, dated January 13, 1977, which, after a hearing, awarded custody of two of three minor children to the respondent father.
Order affirmed, without costs or disbursements, and proceeding remanded to the Family Court to (1) fix the amount of alimony and child support for the parties' son, Tom, who remains in petitioner's custody and (2) make a determination as to an award of counsel fees in the custody proceeding. Pending such determination, the respondent is directed to pay petitioner the sum of $25 per week as alimony and $25 per week as child support. Petitioner is granted leave to apply de novo to Special Term for counsel fees with respect to the annulment action.
The parties were married in 1964 and, during the marriage, produced three children: Lisa, who is presently 12 years old; Carol, who is presently 10 years old; and Tom, who is presently 3 years old. Marital problems developed and the parties separated in 1970, although there were subsequent periods of reconciliation (respondent initially challenged the paternity of the child Tom, born in 1974, but now concedes the child is his).
In 1975 the respondent commenced an action in the Supreme Court, Queens County, to annul the marriage upon the ground that a Mexican divorce decree which had dissolved his prior marriage was allegedly invalid. At about the same time, the petitioner commenced a proceeding in the Family Court, Queens County, for support for herself and Tom, as well as for a declaration of Tom's paternity. In the course of the proceeding, the Family Court, on February 14, 1975, in a temporary support order, directed that the respondent pay the sum of $25 per week for the support of petitioner and the child.
The Supreme Court, by judgment dated December 18, 1975, dismissed the annulment action, awarded custody of the three children to petitioner, and referred collateral questions of alimony, child support and counsel fees to the Family Court. That latter court, in turn, by an order dated January 16, 1976, referred those identical questions back to the Special Term of the Supreme Court for consideration.
With respect to the annulment action, this court affirmed the dismissal of the complaint, but modified the judgment to the extent of remanding the matter to the Family Court "for a determination of the question of custody of the infant issue of the marriage and, if necessary, the amount of child support to be paid by plaintiff to defendant" based upon the complicated circumstances of the case (Mouscardy v. Mouscardy, 52 A.D.2d 841 382 N.Y.S.2d 820). As to the Family Court order referring those same questions back to the Supreme Court, this court remitted the proceeding to the Family Court for a further hearing on the custody question, citing the "peculiar history of the proceedings" (see Matter of Mouscardy v. Mouscardy, 52 A.D.2d 849, 383 N.Y.S.2d 553). Upon remand, the Family Court, by the order under review, awarded custody of the two girls to the respondent, after a hearing and the submission of updated reports of a psychologist and psychiatrist. The Family Court failed, however, to provide for child support, alimony or counsel fees.
We agree with the Family Court that the respondent father should be awarded custody of the two older children, Lisa and Carol, subject to liberal visitation for the petitioner. The cardinal rule in the determination of custody disputes between divorced parents is, of course, the protection of the best interest and welfare of the children (Domestic Relations Law § 70; Matter of Bennett v. Jeffreys, 40 N.Y.2d...
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In re B.H.
...Constitution and by statute ( Matter of James A., 50 A.D.3d 787, 856 N.Y.S.2d 192 [2d Dept. 2008]; Matter of Mouscardy v. Mouscardy, 63 A.D.2d 973, 974-975, 405 N.Y.S.2d 759 [2d Dept. 1978] ). Subject matter jurisdiction concerns a court's competence to entertain a particular kind of applic......
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Elissa F, Matter of
...to award counsel fees in custody proceedings. Hockenbrought v. Hockenbrought, 44 A.D.2d 767, 354 N.Y.S.2d 257; Mouscardy v. Mouscardy, 63 A.D.2d 973, 405 N.Y.S.2d 759; Sooy v. Sooy, 101 A.D.2d 287, 475 N.Y.S.2d Section 842 of the Family Court Act permits the court to issue an order of prote......
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Lorie C. v. St. Lawrence County Dept. of Social Services
...subd. b) of the State Constitution and the fact that the Family Court is a court of limited jurisdiction (Matter of Mouscardy v. Mouscardy, 63 A.D.2d 973, 975, 405 N.Y.S.2d 759, 761; Clune v. Clune, 57 A.D.2d 256, 257, 394 N.Y.S.2d 556, 557) that the Legislature intended to vest in the cour......
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