Webster v. Webster

• Decision Date: 10 June 1958
• Citation: 176 N.Y.S.2d 799,14 Misc.2d 64
• Parties: Elizabeth Z. WEBSTER, Plaintiff, v. Walter F. WEBSTER, Defendant.
• Court: New York Supreme Court

Page 799

176 N.Y.S.2d 799

14 Misc.2d 64

Elizabeth Z. WEBSTER, Plaintiff, v. Walter F. WEBSTER, Defendant.

Supreme Court, Westchester County.

June 10, 1958.

Gallop, Climenko & Gould, New York City, for plaintiff.

Frederick C. Scheel, New York City, for defendant.

GEORGE M. FANELLI, Justice.

Plaintiff wife moves to punish defendant for contempt in that he has failed to make payments, as directed by a judgment of divorce rendered by this court in March 1942, for the support and maintenance of one of his children (who will become 19 years of age on June 26, 1958). Defendant opposes the motion and, by way of cross-motion, moves to modify said judgment to the extent of eliminating said support provisions until such time as said child is returned to the jurisdiction of the court; that defendant's rights of visitation under said judgment be restored; and that all arrears for such support which have accrued during such period in which defendant has been deprived of such visitation be cancelled.

The record in this case indicates that on December 6, 1941, the parties entered into a separation agreement which provided inter alia, that plaintiff wife was to have custody of the two children of the marriage (then 8 and 2 years respectively); that defendant was to pay plaintiff the sum of $65.00 per week for the support of herself and the children (with certain adjustments in the event of remarriage of plaintiff and upon the children attaining certain ages). The agreement further provided for detailed and liberal visitation privileges to defendant father, e. g., Saturday or Sunday of each week; the right to have the children with him at his residence on one week-end each month; the right to have the children with him on alternative holidays which include New Year's Day, Lincoln's Birthday, Washington's Birthday, Easter Sunday, Decoration Day, July 4th, Labor Day and the birthdays of the children; the right to have the children with him in either the month of July or August in each year. The agreement further provided that 'The 'husband' when taking the children, as herein provided, shall call for said children at the childrens' home and shall return them to their home. There shall be no deviation from the rights of visitation herein afforded to the husband except on account of illness' * * * and 'in the event an action for separation or absolute divorce be instituted in the State of New York or any other competent jurisdiction, the provisions of this agreement shall be included in said judgment of separation or divorce with respect to the support and maintenance of the 'wife', support and maintenance of the infant children, the custody of said children, and the rights of visitation to said children' (emphasis supplied).

Less than two months later (January 30, 1942), plaintiff commenced this divorce action wherein she charged defendant with acts of adultery allegedly committed in May, 1939. Defendant appeared through counsel but did not contest the action and, on February 24, 1942, after an inquest, the court directed the entry of a judgment. Accordingly, on March 6, 1942, the court entered an interlocutory judgment of divorce which specifically referred to the aforementioned separation agreement and made it a part thereof 'as if the same were set forth in full' and the judgment repeated verbatim all the provisions of the separation agreement referable to support, custody and rights and privileges of visitation afforded defendant.

Plaintiff remarried in 1948 and in 1950 she moved to Louisville, Kentucky, with her new husband and took with her the aforementioned two children. One of the children attained his majority in 1954 and concededly defendant is now in arrears to the extent of the $2,100.00 (as of February 15, 1958) by reason of his failure to make weekly payments of $20.00 each for the support of the child, who will soon become 19 years of age.

Defendant, too, has remarried and now has three children by his present wife. In addition to his alleged change in financial circumstances, defendant resists the present motion to punish and seeks a modification of the judgment of divorce upon the ground, principally, that plaintiff has violated and does now violate the visitation provisions of the divorce decree and that under such circumstances he should be relieved of the arrears which have accrued since January, 1957, and that all future payments should be suspended. Defendant does not contend that he has not seen his son for the past eight years. Rather, he sets forth that he has seen him on four occasions (1951, 1953, 1954 and 1956) when the boy visited with him for short weekly intervals in Westchester County.

With respect to the substantive questions of law presented by these motions, plaintiff takes the position that her removal of the children from the jurisdiction of this court does not relieve defendant of his obligations to make the support payments directed by the court in its judgment of divorce. She further urges that it is only, now, when faced with the motion to punish for contempt, that defendant seeks to invoke his inability to exercise his visitation privileges. In support of her position, plaintiff has submitted numerous authorities which do hold that where payments and visitation are not by the judgment made conditional--one upon the other--a husband cannot escape the obligation to support his child as directed by the judgment because he is deprived of the benefit of the judgment as to visitation (Altschuler v. Altschuler, 248 App.Div. 768, 289 N.Y.S. 59; Fox v. Fox, 273 App.Div. 895, 77 N.Y.S.2d 90; Smith v. Smith, 255 App.Div. 652, 9 N.Y.S.2d 188; Tamny v. Tamny, 205 Misc. 439, 129 N.Y.S.2d 41). However, defendant has urged upon this court, as, holding to the contrary, the case of Goldner v. Goldner, 284 App.Div. 961, 135 N.Y.S.2d 337, affirmed 309 N.Y....