People ex rel. Herzog v. Morgan
| Decision Date | 15 January 1942 |
| Citation | 39 N.E.2d 255,287 N.Y. 317 |
| Parties | PEOPLE ex rel. HERZOG v. MORGAN. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Second Department.
Habeas corpus proceeding by the People, on the elation of Lewis McComb Herzog, against Angela Stevenson Morgan for apportionment of the custody of two minor children of relator and respondent. From an order of the Appellate Division, 262 App.div. 763, 27 N.Y.S.2d 630, modifying an order of the Special Term, Patterson, J., as to the children's custody, both relator and respondent appeal.
Order of Appellate Division reversed and that of Special Term affirmed. Frederick E. Crane and Milton Zwisohn, both of New York City, and Nicholas P. Nanos, of Stamford, Conn., for relator, appellant and respondent.
William L. Handaway and Thornton C. Land, both of New York City, for defendant, respondent and appellant.
This is a habeas corpus proceeding brought by the father of two children for an apportionment of their custody between him and their mother.
On June 28, 1933, the parties entered into an agreement of separation whereby the custody of the children was granted to the father during July and August and the Easter vacation of each year and to the mother at other times but with the privilege to the father of daily visitation. Pursuant to this agreement the father set up trust funds from which the mother has received for the support of the children $416 each month.
In May, 1935, the mother was granted a divorce from the father by a Nevada decree this is valid under our own law. Thereby the Nevada court adjudged ‘that the written agreement made and entered into by the plaintiff and the defendant herein on the 28th day of June, 1933, settling the property rights of the plaintiff and the defendant and all matters concerning the care, custody, and support of the minor children of said parties * * * be and the same hereby is * * * ratified, adopted and approved in all respects, and with the same force and effect as if said agreement were annexed hereto and set out in full in haec verba as a part hereof; and said agreement is hereby declared to be fair, just and equitable to the plaintiff, to the defendant, and to the said minor children; and the plaintiff and the defendant are both ordered and directed to comply with all of the terms and conditions of said agreement.’
Citing Ansorage v. Armour, 267 N.Y. 492, 196 N.E. 546, the Special Term ruled that the foregoing provisions of the Nevada decree were binding upon the mother, since (as the court found) there had been no ‘change in conditions and circumstances since the rendering of the decree that makes it necessary for the children's best interests that the provisions for custody thereby made, be altered.’ The mother, dissatisfied with this result, appealed to the Appellate Division where the order of Special Term was modified so as to direct that the father (1) ‘shall have custody of the children each year for a period of two weeks during either July or August, but on condition that the children be accompained by their nurse or governess,’ and (2) ‘shall have the right to visit the children between the hours of 3 and 6 p.m. on one Sunday each month, provided he gives reasonable notice to * * * (the mother) of his intention so to do.’ 262 App.Div. 763, 27 N.Y.S.2d 630. The case comes here on cross-appeals by the parties from the order of the Appellate Division.
Conformably to the separation agreement of June 28, 1933, the mother was appointed general guardian of the persons of the children by the Surrogate's Court of the County of New York on April 25, 1934. She makes the argument that the Nevada decree does not bind her as such guardian, since she was never before the Nevada court in that status. This argument, we are sure, falls short of the heart of the issue. Neither the letters of guardianship nor the Nevada decree diminished the prerogative of the New York Supreme Court as parens patriae. By means of that paternal jurisdiction the court was to provide for the best interests of the children after the manner of a wise, affectionate and prudent parent. Finlay v. Finlay, 240 N.Y. 429, 148 N.E. 624, 40 A.L.R. 937. From that same standpoint we must now say where in our judgment the weight of the evidence lies in respect to the conflict between the findings of the Special Term and the implied contrary findings of the Appellate...
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