Werner v. Werner

• Decision Date: 11 December 1953
• Parties: "Stella Werner", on Behalf of "Albert Werner", Petitioner,<BR>v.<BR>"Ralph Werner", Respondent.<SUP><A onclick=scife_fn_clicked(); href="#[1]" name=r[1]>[*]</A></SUP>
• Court: New York Family Court

204 Misc. 1085

"Stella Werner", on Behalf of "Albert Werner", Petitioner,

v."Ralph Werner", Respondent.^[*]

SICHER, J.

December 11, 1953.

Laurence B. Ashkin for petitioner.

Sol Douglas for respondent.

SICHER, J.

This proceeding is a sequel to a consensual Florida decree of divorce which was entered on February 17, 1948, in the Circuit Court of the 11th Judicial Circuit in and for Dade County, Florida, and which awarded to the mother custody of the only child of the marriage and $25 a week for that child's support.

Since respondent resides in the city of New York, the child was not a party to the Florida action, and the court which entered such decree has the power to modify it (Florida Statutes, Annotated, Vol. 5, ch. 65, § 65.15), this court has jurisdiction to entertain this proceeding (Langerman v. Langerman, 303 N.Y. 465 and 203 Misc. 230; see, also, Matter of Pinto, 203 Misc. 244).

It is undisputed that "Stella Werner" and "Ralph Werner" married each other on November 4, 1938, and became the parents of the one child who is the subject of the petition herein, namely, "Albert Werner" (born December 11, 1941); that on September 4, 1947 the parents entered into a separation agreement which was embodied in said final decree of divorce upon the father's appearance by attorney and filing an answer in the divorce action; that within a few days after the entry of the Florida decree the mother remarried; that her second marriage also eventuated in a Florida divorce decree (entered February 2, 1952), which granted her alimony of $50 a week for herself until there will have been paid to her at that rate some stated sum but that she had appealed for a fuller provision; that the respondent father also had remarried on June 1, 1949, and by his second wife became the father of a daughter ("Esther", born April 10, 1951).

The mother now asks in "Albert's" behalf $100 a week. But her testimony and demeanor created the distinct impression that she seeks in this proceeding, by indirection and without any legal right (N. Y. City Dom. Rel. Ct. Act, § 137, subd. 1), support for herself individually as well as the child, now that her second marriage venture has also failed.

The sole issue for determination is the fair and reasonable amount which respondent may at this time be required to pay for "Albert's" support.

Unfortunately, the briefs of both counsel are too unrealistic to be of material aid to the court. Each attorney overzealously presses the exaggerated contention of his respective client; the mother's counsel presenting obviously padded figures, and the father's counsel vainly attempting to justify his client's rigid, punitive attitude concerning his son in total disregard of the well-established law that in this State a visitation dispute does not excuse a father's violation of a court order for support of his child. (See Grossman on New York Law of Domestic Relations, § 162, and cases cited; also, the discussion in "Almandares" v. "Almandares", 186 Misc. 667.) "It is not the policy of the law to deprive children of their rights on account of the dissensions of their parents for causes of which they are innocent and by proceedings to which they are not parties. The legal and natural duty of the father to support his children is not to be evaded by him * * * on the ground of any dissensions whatsoever with his wife. A natural father would not think of doing so, and an unnatural one should not be permitted to do so." (17 Am. Jur., Divorce & Separation, § 693, p. 529.) "While the decree of divorce dissolves the marital relations of the parties, it did not divorce the father from his child or dissolve his liabilities to it." (Carmody on New York Practice [2d ed.], § 194, p. 293, citing Laumeier v. Laumeier, 237 N.Y. 357.)

It is also pertinent that "the aftermath of divorce brings a variety of sensitive situations * * *. Probably the most frequent and familiar duels between the former partners to a marriage arise over two issues; money is one, and the exercise of the father's visitation privileges the other. * * * Time and events have come between the father and his children. He has lost the ease of daily contact. His feeling of guilt toward them may make him press too hard for a loving response from them, and any rebuff they offer is magnified out of its true proportion. The children too are ill at ease. His presence may be a threat to the new security they may have worked hard to build without him." ("Children of Divorce", by J. Louise Despert, M. D., 1953, p. 69.)

Of course, this court has neither the duty nor the power to enforce any provision of the Florida decree, whether concerning visitation or support; its jurisdiction is quite independent of that decree, and by virtue of Langerman v. Langerman (supra) it is exercisable regardless of what amount may have been fixed in the sister-state decree, even by stipulation, or whether the provisions of such decree are being obeyed or breached. The sole fundament of this Family Court's jurisdiction is, instead, the primary obligation of a father for support of his minor child, measured by the child's changing needs in relation to the father's ability, from time to time, to provide and his station in life (see "Johnston" v. "Johnston", 177 Misc. 618, 623; Prindle v. Dearborn, 161 Misc. 95, 99; and Schacht v. Schacht, 187 Misc. 461; cf. Garlock v. Garlock, 279 N.Y. 337, 340).

The net of the mass of decisions applying that principle and therefore a guide for today's disposition has been tersely summarized thus: "The legal duty of a parent to support his minor children is affected by many considerations. His health, his means, his station in life, as well as similar considerations on the part of the child, have a bearing upon it. Although he is bound to furnish support while his legal obligation continues, if of sufficient ability, it is the duty of the parent only to do the best he can to support his child in the manner suitable to his station and circumstances. The tests of the parent's ability to furnish adequate support are ordinarily comparative rather than absolute. The relative size of the income or means of the parent and of the child must be considered, as well as the number of persons dependent on the father for support, and other items of expense or other demands to be met out of the father's means". (39 Am. Jur., Parents & Child, § 36, p. 636.)

The determination of the "fair and reasonable sum" which respondent may be required to contribute in this proceeding (N. Y. City Dom. Rel. Ct. Act, § 92, subds. [1]-[4]; § 101, subd. 1) is further complicated by emotional factors unfortunately not uncommon in this kind of widespread difficulty. "A very real problem which affects support payments is that of remarriage by the man and establishment of a second family. The father then becomes so involved financially that he takes care of the family making immediate demands and neglects his prior responsibilities." (Annual Report for 1951, Cuyahoga County Juvenile Court, Cleveland, Ohio, p. 17.)

And that phase is here intensified by the failure of "Albert's" mother's second marriage. Unfortunately for him, this proceeding has revived the tensions which led to the original divorce and made him the victim of the resultant renewed hostility between the parents. Thus, although the separation agreement provisions incorporated in the Florida decree contemplated that the child might reside in Florida and become available for visitation in New York State only during the summer months, respondent attempts to justify his inexcusably stopping in June, 1953, even the $25 weekly payments on the asserted ground that "Albert" shows no respect or affection for him and that therefore he refuses to make any further payments for what he callously characterized as a "dead horse".

As I have previously held, this court of limited jurisdiction has no power to order visitation of a child of divorced parents (see "Benedict" v. "Benedict", 203 Misc. 286, 295-296). But surely the mother should realize that in the long run "Albert" will be the loser if she drops an iron curtain between him and his father. In self-respect the mother and father should have heeded this court's urging that they reach a reasonable agreement concerning visitation and "Albert's" maintenance; and each will now doubtless be dissatisfied with today's order, entered upon a voluminous record necessitated, on the one hand, by petitioner's unyielding demand for an excessive award and, on the other hand, by the father's stubborn refusal to recognize his legal and moral obligations toward the child of the broken marriage.

No useful purpose would be served, and the...