Vastola v. Vastola
| Decision Date | 09 May 1960 |
| Citation | 23 Misc.2d 39,200 N.Y.S.2d 512 |
| Parties | Rose VASTOLA v. Gaetano VASTOLA. |
| Court | New York Supreme Court |
Delukey & Shapiro, Brooklyn, for plaintiff.
Alfred Besunder, Brooklyn, for defendant.
Plaintiff moves to punish defendant for contempt for failure to make payments pursuant to the decree of divorce between the parties, which decree provided for the support and maintenance of both plaintiff and the infant issue of the marriage. The arrears amount to $684. Defendant cross-moves to punish plaintiff for contempt for allegedly refusing to permit defendant reasonable visitation with the child of the parties and for a modification of the judgment so as to provide for a fixed time for visitation and for a modification of the amount required for support and maintenance.
At the end of February, 1960 plaintiff and the infant issue moved to the home of plaintiff's parents in Miami, Florida. It is claimed by plaintiff that this was done with defendant's consent; that the parties had arrived at a new agreement in respect of visitation, and that such modified arrangement provided for the defendant to enjoy visitation rights during the Christmas holidays and the summer vacation.
The parties had entered into a separation agreement prior to the entry of the decree of divorce. The agreement which, by its terms, was to survive any decree of divorce which might be obtained, accorded the defendant the right of visitation during one week-end in each month, and further provided that the plaintiff would be free to establish a domicile for herself and the issue of the marriage in any place in the United States, provided due notice were given the defendant. The provisions of the separation agreement were not incorporated into the judgment. The judgment of divorce gave plaintiff sole custody of the infant, giving the defendant 'reasonable rights of visitation.'
The defendant's contentions may be measured against the significant fact that the last payment made by him was on January 8, 1960, some time prior to the removal of the child from the State of New York, which removal is assigned by him as the ostensible reason for his suspension of the payments directed by the decree; nor has explanation been tendered by the defendant for his failure of compliance with the provision of the said decree directing support for the plaintiff.
In any even, the provision in the decree for support and maintenance is an independent one, and is not conditioned upon the enjoyment by the defendant of his right of visitation. Accordingly, plaintiff's removal to Florida--quite apart from her vehement assertion that it was in keeping with the mentioned modified understanding between the parties--provides no warrant for relieving the defendant from his obligation of support, as fixed by the decree of divorce. Fox v. Fox, App.Div.2d Dept., 273 App.Div. 895, 77 N.Y.S.2d 90; Smith v. Smith,...
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