Sutera v. Sutera

• Decision Date: 02 April 1956
• Citation: 150 N.Y.S.2d 448,1 A.D.2d 356
• Parties: In the Matter of the Application of Salvatore SUTERA, appellant, v. Joan SUTERA, respondent, to determine the custody of Francis Sutera. In the Matter of the Application of Joan Watson SUTERA, respondent, for a Writ of Habeas Corpus to bring up the body of Francis Andrew Sutera, an infant.
• Court: New York Supreme Court — Appellate Division

Page 448

150 N.Y.S.2d 448

1 A.D.2d 356

In the Matter of the Application of Salvatore SUTERA, appellant, v. Joan SUTERA, respondent, to determine the custody of Francis Sutera In the Matter of the Application of Joan Watson SUTERA respondent, for a Writ of Habeas Corpus to bring up the body of Francis Andrew Sutera, an infant.

Supreme Court, Appellate Division, Second Department.

April 2, 1956.

Nathan Dorfman, Glen Cove (David Quient, Baldwin, of counsel), for appellant.

Richard S. Lane, New York City, of counsel (Shadler & Lane, New York City, attys.), for respondent.

Before NOLAN, P. J., and WENZEL, BELDOCK, MURPHY and UGHETTA, JJ.

NOLAN, Presiding Justice.

Salvatore and Joan Sutera, the adult parties to these proceedings, were married in New York City in 1947. Their infant son, whose custody is the subject of the proceedings, was born on February 24, 1948. Thereafter, as the result of matrimonial difficulties, the mother, respondent on this appeal, left the marital home in Glen Cove, New York, and took the child to Massachusetts. The father, appellant before this court, was not informed of the whereabouts of his wife and child, but after ascertaining where they were, went to Massachusetts, and about July 18, 1955, removed the child to New York, without the mother's knowledge or consent. In the meantime and about July 15, 1955, the mother had commenced a proceeding for separate support in the Probate Court of Essex County, Massachusetts, and had obtained an ex parte order awarding her temporary custody of the infant. Appellant then moved in that court, in person, for a modification of the temporary order, and asked that custody be given to him. Thereafter, that motion was discontinued. On or about July 28, 1955, appellant instituted one of the instant proceedings to obtain an award of custody, and on August 2, 1955, respondent obtained a writ of habeas corpus, seeking the award of custody to her. Both proceedings were returnable August 10, 1955, and on August 30, 1955, the Special Term made an intermediate determination, reciting a pending trial in the Massachusetts proceeding in September, holding that the Massachusetts court had acquired jurisdiction to determine custody and that appellant should submit that question to the Massachusetts court for its decision, and adjourning the instant proceedings to September 23, 1955. On October 20, 1955, the Massachusetts court, after a hearing at which appellant did not appear, although the attorney representing him in the instant proceedings had received notice thereof, made its decree awarding custody of the child to respondent. On November 3, 1955, these proceedings came on for a hearing and the Special Term held, in substance, that the Massachusetts decree was entitled to full faith and credit and that the custodial provisions thereof should not be altered except on proof of a change in circumstances since the making of that decree, and excluded considerable evidence as to the relations of the parties prior thereto. No such change having been shown, appellant's petition was denied and custody was awarded respondent.

It is our opinion, on the facts presented by this record, that the determination made at Special Term was correct. Under the law of Massachusetts, which governs the question, Restatement, Conflict of Laws, § 82; cf. Lynde v. Lynde, 162 N.Y. 405, 56 N.E. 979, 48 L.R.A. 679, affirmed 181 U.S. 183, 21 S.Ct. 555, 45 L.Ed. 810, and Laing v. Rigney, 160 U.S. 531, 16 S.Ct. 366, 40 L.Ed. 525, appellant's motion to vacate the temporary order of custody constituted a general appearance, Gahm v. Wallace, 206 Mass. 39, 44 45, 91 N.E. 1002; Lapresti v. Burton 295 Mass. 6, 8, 2 N.E.2d 1018, and the court was not deprived of the jurisdiction thus conferred by the discontinuance of that motion. Garber v. Hirsh, 225 Mass. 422, 424, 114 N.E. 670; Harvey v. Fiduciary Trust Co., 299 Mass. 457, 465, 13 N.E.2d 299. The child was a resident of Massachusetts when the proceeding in the Probate Court was commenced, and that court had jurisdiction of the subject matter of the proceeding and of the parties. Consequently, it had jurisdiction to pass upon the question of custody, Schmidt v. Schmidt, 280 Mass. 216, 218, 182 N.E. 374; Conley v. Conley, 324 Mass. 530, 87 N.E.2d 153; Welker v. Welker, 325 Mass. 738, 744, 92 N.E.2d 373, and to render a decree thereon which is entitled to full faith and credit in this State, as against appellant's claim to the right to custody in the instant proceedings. Ansorge v. Armour, 267 N.Y. 492, 196 N.E. 546; Matter of Standish, 197 App.Div. 176, 188 N.Y.S. 900, affirmed 233 N.Y. 689, 135 N.E. 972; People ex rel. Tull v. Tull, 245 App.Div. 508, 283 N.Y.S. 183, affirmed 270 N.Y. 619, 1 N.E.2d 359.

While the New York Supreme Court has jurisdiction to provide for the best interests of a child resident within the State, 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; People ex rel. Herzog v. Morgan, 287 N.Y. 317, 320, 39 N.E.2d 255, the Special Term was required, in determining what was for the best interests of the infant in the present proceedings, to give to the Massachusetts decree, which had determined the identical question, the same credit and effect as would have been given to it in Massachusetts. People of State of New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133; Ansorge v. Armour, supra; People ex rel. Tull v. Tull, supra; Young v. Roe, 265 App.Div. 858, 37 N.Y.S.2d 714, affirmed 290 N.Y. 823, 50 N.E.2d 235. In Massachusetts, as in New York, an award of custody may be changed or altered when it appears that a change will be for the best interests of the child. Perkins v. Perkins, 225 Mass. 392, 397-398, 114 N.E. 713; Hersey v. Hersey, 271 Mass. 545, 549, 171 N.E. 815, 70 A.L.R. 518; Coughlin v. Coughlin, 312 Mass. 452, 456, 45 N.E.2d 388; Welker v. Welker, 325 Mass. 738, 92 N.E.2d 373, supra. It is also the rule in Massachusetts that 'ordinarily at least, a change in an order for custody * * * must be based upon some change in the circumstances of the parties since the preceding decree was entered'. Hinds v. Hinds, 329 Mass. 190, 191, 107 N.E.2d 319, 320; Breton v. Breton, 332 Mass....