Opinion
April 10, 1950.
On December 12, 1939, defendant husband obtained a decree of separation against plaintiff wife in Queens County, the decree providing that plaintiff wife have custody of the daughter of the parties and that defendant pay $7 a week for the child's support until January 1, 1940, and $8 a week thereafter. On April 20, 1943, plaintiff obtained a divorce decree against defendant in Maryland. That decree provided that plaintiff have the custody of the daughter, but was silent as to the amount to be paid by defendant for the support of the child. In November, 1949, plaintiff made an application to modify the New York separation decree to increase the allowance for the support of the daughter of the parties. The application was denied on the ground that the New York separation decree was merged in the Maryland divorce decree. Order reversed on the law, with $10 costs and disbursements, and the matter remitted to Special Term to determine the amount of the increase, if any, of the allowance for the support of the child, and the amount of counsel fees to be awarded for the services rendered in connection therewith. The law in Maryland is that where a divorce decree which awards custody of a child to the mother is silent with respect to the amount to be allowed for the support of the child, the presumption is that the court had no jurisdiction to adjudicate in the matter because the decree in that respect requires in personam jurisdiction. ( Alvey v. Hartwig, 106 Md. 254.) Since the Maryland court had no power to adjudicate with respect to the support of the child, its decree did not cancel the provision contained in the judgment of the prior New York separation action for the support of the child. New York need not give full faith and credit to that phase of the Maryland decree which, by failing to adjudicate support for the child, denies support, and the provisions of the New York judgment with respect to support for the child survive the Maryland divorce decree. ( Estin v. Estin, 334 U.S. 541, 548-549.) Since the New York separation decree continues for the purposes here involved, a counsel fee for the services rendered in connection therewith may be properly allowed. ( Fox v. Fox, 263 N.Y. 68.) The counsel fee sought by plaintiff is for services rendered for the benefit of the child. Nolan, P.J., Carswell, Johnston, Adel and Sneed, JJ., concur.