Summary
affirming order modifying a judgment which enforced a pre-nuptial agreement that child be brought up in an identified denomination, so as to provide that a twelve year old child might attend the church of his own choice
Summary of this case from Whalen v. AllersOpinion
Argued October 15, 1954
Decided December 31, 1954
Appeal from the Supreme Court, Appellate Division, Second Department, MEIER STEINBRINK, Off. Ref.
James N. Vaughan and Hugh Lincoln Hoey for appellant. Malcolm I. Ruddock, Bertram E. Gendar and Edward A. Niles for respondent.
After a fairly extensive hearing, at which the boy, then twelve, now fourteen, years old, testified, the Referee, appointed to hear and determine the matter, decided that the "boy's welfare" called for modification of the decree in the respects requested, and the Appellate Division affirmed. There being ample evidence to support both the finding that the youngster was old enough to testify intelligently and the conclusion that the modification was for his best interests and welfare, the order appealed from should be affirmed, with costs.
I dissent for these reasons:
1. There is no finding and no testimony that enforcement of the religious training provision of the 1949 judgment (and of the 1938 agreement which it confirmed) would damage, or has damaged, the boy, mentally, physically or in any other way. All statements as to his becoming "unhappy" or "mentally disturbed" or "ill-adjusted" are taken from the mother's ex parte affidavit which is a mere pleading, not proof. Neither the mother, nor the boy nor anyone else gave any testimony as to any such mental hurt or disturbance. The Referee's decision makes no such finding. The Referee amended the decree solely because, so he found, this twelve-year-old boy "has a mind of his own", because failure to amend the decree "would strip him of his independent judgment in matters of this kind", and because (so held the Referee) "neither the mother's wishes nor the father's wishes should control what is here to be done". True, at the end of the decision, the Referee said he was doing what "is best for the boy" but it is impossible to read the decision as based on anything except the boy's own wishes and his supposedly mature and considered choice of a religion for himself. That was not within the Referee's competency, in the face of a Supreme Court judgment as to the place and nature of his religious training, based on a solemn prenuptial agreement.
2. The idea that a child of twelve is competent to make a choice binding on the Supreme Court and on his parents in such a matter is not only contrary to our decisions (see Bunim v. Bunim, 298 N.Y. 391), and contrary to all human experience, but is directly opposed to the parens patriae public policy of New York (see Alcoholic Beverage Control Law, §§ 100, 126; Pari-mutuel Revenue Law [L. 1940, ch. 254], § 8; Domestic Relations Law, §§ 15-a, 72; Labor Law, § 130; Education Law, art. 65, part I; General City Law, § 18-b; Penal Law, §§ 484, 486; Personal Property Law, § 163; Debtor and Creditor Law, § 260; Judiciary Law, § 474; Correction Law, § 485; Vehicle and Traffic Law, § 20; N.Y. Const., art. VI, § 18; Mental Hygiene Law, § 132; Correction Law, § 610; Social Welfare Law, § 373; Code Crim. Pro., §§ 483, 913-m; N.Y. City Dom. Rel. Ct. Act, § 88, subd. 5).
3. This sort of prenuptial agreement is enforcible like any other, unless and until its enforcement is shown to be harmful to the child. "Agreements between parents for a particular sort of religious upbringing have in general been held valid in this country" ( Weinberger v. Van Hessen, 260 N.Y. 294, 298). Particularly must this be so when the agreement has been confirmed by, and written into, a judgment.
4. Although the child's welfare is a paramount consideration in every custody case, we cannot close our eyes to fundamental principles as to judgments and agreements, and we cannot forget ancient maxims denying equitable relief to suitors whose hands are unclean. Respondent failed to prove that an amendment to the decree was suggested by anything except the boy's own desires. She did prove affirmatively that she herself had created this troublesome position by violating not only her solemn agreement, but the plain condition under which custody was decreed to her.
LEWIS, Ch. J., DYE, FULD, FROESSEL and VAN VOORHIS, JJ., concur in Per Curiam opinion; DESMOND, J., dissents in an opinion in which CONWAY, J., concurs.
Order affirmed.