A New York Family Lawyer said this appeal brings before this Court for review several orders of the Children’s Court of Nassau County heretofore made in this proceeding pending in that Court to compel support of a dependent minor child under the Uniform Support of Dependents Law in accordance with Domestic Relations Law, Article 3-A.
Also, pending before the Court is a motion to vacate or stay a warrant issued by the Children’s Court for failure of appellant to comply with its orders. A temporary stay contained in the order to show cause by which this motion was brought on was vacated before argument of the motion, determination of which will be accomplished by the decision of this appeal.
A New York Divorce Lawyer said that in Queens County, the parties, formerly husband and wife, lived together during their marriage. Dissension arose between them, and the wife, the petitioner n this case, started a separation action, which was tried in 1959, and as a result, the court made a judgment dismissing her complaint. The custody of the infant daughter (then less than two years old and now four years old) was granted to her. The court issued an order directing the father to pay the mother for the child’s support the sum of $40 per week and allowing him weekly visitation.
A New York City Family Lawyer said after the rendition of the judgment, it appears that the parties lived together. Again, dissensions arose between them. Consequently, in April, 1960, the wife left the husband, taking the child with her. Thereafter, the wife went to Florida with the child where they both continued to reside.
In June, 1960 this proceeding was commenced in the appropriate court in Florida and transferred to the Children’s Court of Nassau County, where the father now resides. On 2 November 1960. The court made an order directing the husband to pay $40 per week for the child’s support. This order was appealed from.
A Manhattan Family Lawyer said that on 17 January 1961, a further order was made, continuing the provisions of the order of 2 November 1960 and further directing payment of $20 per week for the support of the wife. It does not appear that this order has been appealed from. Up to this point, respondent who is admitted to the practice of law, but employed and making his living as a salesman had defended in person.
On 6 April 1961, by his present counsel, the husband moved to vacate the order of 17 January 1961. The court granted the motion to the extent that on 27 April 1961 the provision of the order of 17 January 1961, providing for payments for the wife’s support was vacated as of 27 March 1961. This order was made upon the knowledge of the court that the wife had obtained a decree of divorce in Florida and shortly after married Z. In all other respects, the motion was denied. From such denial an appeal was taken. On 27 April 1961 likewise an order and an amended order were made, continuing the direction for payment of $40 per week for the child’s support from all of which orders appeals were taken.
Respondent-appellant argues that evidence of the petitioner taken in Florida was improperly admitted without according him the right of cross examination. The Children’s Court followed the procedure permitted by Domestic Relations Law, § 37, subdivisions 6, 7 and 8. Respondent-appellant made no application for interrogatories, as provided by subdivision 9 of that section and even on his own testimony an order for the child’s support would have been warranted. The only real dispute was as to the wife’s reason for going to Florida and on that issue the respective contentions were before the court. The court was of the opinion that there was no error in the reception of the evidence of which complaint is now made based on the ruling in Landes v Landes.
The court notes that the mother has no doubt deprived the father of any substantial power of visitation. This, as shown by the cases relied upon by the appellant, might induce the Court to refuse to punish the husband for contempt in failing to comply with an order for the payment of alimony in a matrimonial action or it might deprive the wife of a right to enforce monetary provisions of a separation agreement.
It does not, however, constitute a defense in a proceeding under the Uniform Support of Dependents Law, a basic assumption of which is that a father is responsible for the support of his dependent children, regardless of the acts of the mother as ruled in Aberlin v Aberlin and Goodman v Goodman.
Perhaps a case may be imagined where a mother would be so contemptuous of the orders of a court as to justify a refusal to make an order under the Uniform Support Act but this is not such a case. This mother had custody of the child awarded to her and the father was directed to pay for the child’s support the sum named in the orders appealed from, all by a judgment of the Supreme Court, Queens County, never modified. The amount named in the order is large for this child’s age, but there is some proof that the child was ill and required medical care and no reason appears in the record for decreasing the amount, which is well within the father’s means to pay. While representing himself, he expressed his willingness to contribute to the child’s support, seeking only an assurance of right to visit the child which the courts of this State can no longer effect. However, that does not absolve him from his duty.
The court reaches a different conclusion as to the order for the support of the wife. This order has been, for the future, vacated and was in effect for only about two months. Although no appeal was taken from the order, there was a substantial showing on the motion to vacate that the mother had been, to say the least, less than frank with the court. Although urging that she was dependent on the husband, she had maintained herself in some fashion in Miami for the better part of a year. Almost immediately after the order for her support was made, the husband was served with process in a Florida divorce action. Within two months, the wife had secured a judgment of divorce and had remarried. In the court’s opinion, the showing of fact upon the motion to vacate in that respect the order of 17 January 1961 was so strong that it compels the finding that the wife was not in fact dependent on the husband and the order directing support for her should have been altogether vacated.
Accordingly, the orders of the Children’s Court of Nassau County, from which this appeal is taken, will be modified to provide that the direction to make payments for the support of the wife shall be altogether vacated, and in all other respects such orders are affirmed. If payments have been transmitted to the wife for her personal support, the respondent-appellant should be credited with them against payments for the support of the child. The motion for a stay is denied. None of the grounds urged in support thereof are sustained.
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