Opinion
March 12, 1947.
Appeal from Supreme Court, Delaware County.
The amendment changed the custody of the infant children of the parties by depriving their mother, plaintiff-appellant, thereof and awarding same to defendant's mother, with whom defendant resides, and to whom defendant was ordered to make the directed payments for the support and maintenance of the children, instead of to plaintiff-appellant, as priorly decreed. The issue which was determined by the order under review was framed by and decided upon conflicting affidavits which are replete with charges and recriminations respecting the fitness of both the mother and the paternal grandmother as custodians of the children. The nature of the issue was such that we deem it could not be justly determined upon conflicting affidavits. Instead common-law proof should have been made. Moreover, the memorandum of the Special Term indicates a ground of the decision which is unsupported by proof and invalid. The avoidance of friction between the divorced parties and an expectancy that the guilty father "will be more willing" to make the ordered payments for his children's support to his mother than to their mother, affords no ground for depriving the latter of the custody of her children. Order reversed on the law and the facts, with $25 costs and disbursements to plaintiff-appellant, and matter remitted to the Delaware County May, 1947, Trial and Special Term of the Supreme Court. All concur.