Sager v. Sager
| Decision Date | 11 May 1964 |
| Citation | 249 N.Y.S.2d 467,21 A.D.2d 183 |
| Parties | Patricia Ann SAGER, Respondent, v. Ralph Bradley SAGER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Robert J. Hines, Ithaca, for defendant-appellant.
Edward P. Abbott, Ithaca, for plaintiff-respondent.
Before GIBSON, P. J., and HERLIHY, AULISI and HAMM, JJ.
The plaintiff wife and the defendant husband obtained an Alabama divorce, which decree confirmed and ratified an agreement between the parties which provided that the defendant was to have the custody of the two children with 'reasonable rights of visitation' to the plaintiff.
In November, 1962 the plaintiff wife served a complaint in which she alleged that the defendant husband had violated the terms of the separation agreement by refusing to allow her visitation rights and praying, inter alia, that the custody of the children be decreed to her. The answer consisted of general denials and alleged defenses, to wit, that the wife 'seldom attempted to exercise her rights of visitation' which caused undue confusion and further, that the wife's visits upset the children, causing them to become emotionally disturbed, undermining the defendant's control of the children, and that the plaintiff left them unattended or with relatives. The answer further contained a counterclaim which alleged that the plaintiff was unfit to have the care and custody of the children and that their interests would be best served by denying the said plaintiff all visitation rights.
The defendant, on this appeal, contends that neither the Supreme Court nor the Family Court, to which the case was referred for determination, had jurisdiction of the subject matter.
At no time did the defendant address any motion to the sufficiency of the complaint and with the serving of the answer and the pleadings in that posture, the Supreme Court by order, based upon a stipulation, transferred and referred the action to the Family Court for disposition. True, the complaint was incorrectly framed but the Supreme Court, with the consent and acquiescence of the defendant, who raised in his answer the issue of parental fitness, proceeded to handle the case no differently than if the proceedings had been correctly instituted by way of a petition in equity.
No question of jurisdiction was raised in the Family Court and considerable testimony was taken, after which, without objection, the court made the order which is the subject of this appeal. The order was signed October 25, 1963 after the effective date of the new CPLR, Section 2001 thereof (formerly § 105, CPA), which we find applicable, and which reads as follows:
'Mistakes, omissions, defects and irregularities
'At any stage of an action, the court may permit a mistake, omission, defect or irregularity to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded.' (See also § 3017[a], CPLR).
The defendant, in contesting the jurisdiction, relies upon Finlay v. Finlay, 240 N.Y. 429, 40 A.L.R. 937, 148 N.E. 624 (1925) but that factual situation was substantially different. There, the husband, a resident of Missouri, brought an action, not based on any matrimonial adjudication, praying for a decree granting to him custody of his children, living in New York with their mother, for a fixed period of the year. There was no question raised as to the welfare of the children and the sufficiency of the complaint was tested at the outset of the action by a proper motion. Of course, that presents a fundamental distinguishing feature. The question raised by Finlay did not involve basic jurisdiction, but only the sufficiency of the complaint.
In Matter of Bachman v. Mejias, 1 N.Y.2d 575, 154 N.Y.S.2d 903, 136 N.E.2d 866 (1956), the court said at page 581, of 1 N.Y.2d, at page 907 of 154 N.Y.S.2d at page 869 of 136 N.E.2d:
In the present circumstances, the Supreme Court, in our opinion, had jurisdiction.
The defendant further questions the authority of the Supreme Court to transfer and refer the action to the Family Court for determination.
By recent amendment (see Article 6, § 13, subd. (c), State Constitution) concurrent jurisdiction was conferred on the Family Court upon referral from the Supreme Court. *
As a sequel to this amendment, legislation was...
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