Opinion
276 A.D. 785 93 N.Y.S.2d 1 FORBELL v. FORBELL. Supreme Court of New York, Second Department November 28, 1949
Proceeding in the matter of the application of Robert C. Forbell, for an order to bring up the body of Mary Monica Forbell, an infant, for the purpose of awarding the custody of the said infant which was opposed by Monica Reilly Forbell.
The Trial Term, Frank E. Johnson, J., awarded custody to the applicant upon the conditions and subject to the provisions of final decree of divorce which applicant had obtained in Florida, and Monica Reilly Forbell appealed.
The Appellate Division, memorandum by the court, reversed the order on the law and the facts and remanded the matter to the Special Term with instructions to proceeding in accordance with the views expressed in the opinion and to take such proper evidence as the parties should adduce, and it was further ordered that pending determination by the Special Term, the child need not be surrendered by the applicant.
See, also, 82 N.Y.S.2d 109.
The determination in divorce proceeding by Florida court as to custody of child was binding only as to the facts actually before the court at time the decree was made and not as to facts which could have been presented, but were not, and not as to facts which arose subsequent to that time, and where the child was in New York the New York courts had power to determine custody of the child by virtue of her residence there, and exclusion of testimony concerning the fitness of father who had obtained divorce to have custody of child was error.
Michael H. Grae, St. George, S. I., Cornelius Bregoff, St. George, S. I. on brief, for appellant.
Charles Trynin, New York City, for respondent.
Before JOHNSTON, Acting P. J., and ADEL, SNEED, WENZEL and MacCRATE, JJ.
MEMORANDUM
This controversy is between the parents of a seven-year old girl over the custody of the child. The proceeding was instituted by the father upon a petition in June of 1949, at a time when custody of the child was in accordance with an order of the New York Supreme Court in a separation action which had been instituted by the mother, which order had been made August 5, 1948, as modified by an order made November 23, 1948, that is, that the child was to stay at the Notre Dame Academy, in Staten Island, New York, from Monday to Friday, inclusive, of each week, as a full-time boarding pupil, and that the mother was to have custody during the week-ends, with a right of visitation by the father. After the making of the order of August 5, 1948, and on September 27, 1948, a decree divorcing the parties was granted in the State of Florida in an action which had been brought by the father, which decree also awarded custody to him, with a right of visitation to the mother ‘ at reasonable times and under reasonable circumstances.’ Despite that decree, there was no attempt to interfere with the actual custody of the child in accordance with the New York orders until the institution of this proceeding. Service of process in the Florida action was by publication, and the mother did not appear.
The parents had been married in 1940 in New York, where, on July 7, 1942, the child was born. The father, because of his employment, moved to Florida, and since November of 1943 has been a permanent resident of that state. The mother and child resided there with him from December of 1943 until May of 1944, when the mother left him and returned to New York, taking the child with her. On April 10, 1945, the father, upon a visit to New York, took the child to Florida, without the consent or knowledge of the mother. Shortly thereafter, and in July of that year, the child was taken ill and the mother came to Florida upon the father's call, whereupon the parties reconciled and lived together in Florida until May of 1947, when the mother again left the father and went to New York, again taking the child. It is not necessary, for the purposes of this determination, to set forth all the facts and details of the controversy, or to recite all the litigation which ensued since sometime in the year of 1944.
The order appealed from awarded custody to the father ‘ upon the conditions, and subject to the provisions, of the Final Decree of Divorce’ which the Florida court had granted. It does not appear that any opinion was rendered by the learned Special Term in making the order, but the stenographer's minutes of the discussion between court and counsel on the hearing of the application, at which no evidence was taken, except that the decree of divorce was recognized, show that the decision was motivated by the view that the court was bound by the provisions of the Florida decree, that is, that New York had to give full faith and credit to it; and the court refused to grant counsel the requested opportunity to submit an affidavit concerning the fitness of the father to have custody. Assuming, arguendo, that the Florida court had jurisdiction to pass on the question of custody, its determination was binding only as to the facts actually before it at the time of the making of the decree; not even as to facts which could have been presented but were not; and of course not as to facts which arose subsequent to that time. Florida itself could again pass on custody, within such limits, and New York was no more precluded than was Florida. Halvey v. Halvey, 330 U.S. 610, 613-615, 67 S.Ct. 903, 91 L.Ed. 1133; Minick v. Minick, 111 Fla. 469, 149 So. 483; Meadows v. Meadows, 78 Fla. 576, 83 So. 392; Ansorge v. Armour, 267 N.Y. 492, 499, 196 N.E. 546, 548, 549; Young v. Roe, 265 A.D. 858, 37 N.Y.S.2d 714,affirmed 290 N.Y. 823, 50 N.E.2d 235; Armour v. Armour, 275 A.D. 941, 89 N.Y.S.2d 577. Regardless of the place of domicile of the child, New York courts had power to determine custody of the child, by virtue of her residence here. Matter of Hubbard, 82 N.Y. 90, 93; Finlay v. Finlay, 240 N.Y. 429, 431, 148 N.E. 624, 625, 40 A.L.R. 937; Ansorge v. Armour, supra; People ex rel. Herzog v. Morgan, 287 N.Y. 317, 39 N.E.2d 255.
Order reversed on the law and the facts, without costs, and matter remitted to the Special Term, with instruction to proceed in accordance with the foregoing views, and to take such proper evidence as the parties may be advised to adduce.
It is the further order of this court that, pending determination by the Special Term, the child need not be surrendered by the father.