Strecker v. Strecker

• Decision Date: 21 April 1960
• Citation: 10 A.D.2d 312,199 N.Y.S.2d 111
• Parties: Ruth STRECKER, mother o/b/o David Strecker, et al., Petitioner-Respondent, v. Harold J. STRECKER, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 111

199 N.Y.S.2d 111

10 A.D.2d 312

Ruth STRECKER, mother o/b/o David Strecker, et al Petitioner-Respondent, v. Harold J. STRECKER, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

April 21, 1960.

Sol Surowitz, New York City, of counsel (Surowitz & Ruskin, New York City, attys.) for appellant.

Edward A. Doberman, New York City, of counsel (Seymour B. Quel, New York City, with him on the brief, Charles H. Tenney, Corp. Counsel, New York City, atty.) for petitioner-respondent. Before BOTEIN, P. J., and BREITEL, FRANK, STEVENS and BERGAN, JJ.

PER CURIAM.

These are appeals from two orders; the first, dated November 10, 1959, directed support of the two infants in the sum of $350 per month; and the second, dated December 28, 1959, denied a motion for reargument and modification but directed that payments be withheld by the support bureau until a response is received to the visitation request of the court on behalf of this appellant.

The parties hereto were married in 1944, separated in April, 1955, and the marriage was dissolved in November, 1956. There are two children of the marriage ages 11 and 7 years respectively, who reside with the mother, the petitioner-respondent, herein referred to as respondent. Prior to the dissolution of the marriage, in October, 1956, the parties entered into an agreement whereby appellant bound himself to pay $30 per week for the support of each child, and $30 per week for the support of respondent, such sum for the wife's support to be discontinued should she go to live with her parents. This agreement was incorporated but not merged in the divorce decree.

Sometime in July, 1959, the respondent removed the children from New York and went to live with her parents in Arizona where the children remain against the wishes of the appellant. Since July, 1959, no payments have been made for the support of respondent or maintenance of the children.

Respondent instituted proceedings in Arizona for support of the infants under The Uniform Support of Dependents Law. A hearing was held in the Domestic Relations Court of the City of New York, at which appellant appeared without counsel, though advised of his right to retain counsel. Thereafter an order of support was entered and a later motion by appellant, through counsel, for a rehearing and modification was denied. It is from those orders that the present appeal is taken.

'The duty of parents to provide for the maintenance of their children, is a principal of natural law; an obligation * * * laid on them not only by nature herself, but by their own proper act, in bringing them into the world'. 1 Blackstone Commentaries on the Laws of England, 446-447, (11th ed. 1791). Blackstone wrote further of the duty to protect and educate children.

This duty to provide maintenance has been recognized and reinforced by statute. The Uniform Support of Dependents Law, embraced within our Domestic Relations Law, provides that a person legally liable for the support of dependents may be required to pay for such support a fair and reasonable sum (Domestic Relations Law, § 32) sufficient to provide necessary food, clothing, etc., expenses as justice requires, having due regard to the circumstances of the parties (id. § 34, subd. 2), if the court determines the petitioner is in need of and entitled to support from the respondent (id. § 37, subd. 11).

The appellant urges that the respondent is a runaway mother and that jurisdiction should be declined. He complains that he is deprived of his visitation rights and questions the validity of the conditional order deferring the transmission of funds. He contends that the order directing payment was made without due regard to...