Opinion
May 7, 1952.
Appeal from Supreme Court, County of Schoharie.
Present — Foster, P.J., Heffernan. Brewster, Bergan and Coon, JJ.
The decree of divorce was entered June 27, 1945, upon the defendant's default in pleading or appearing after she had been served with a summons and notice only, and shortly after she had, without counsel, entered into a separation agreement with the plaintiff wherein without any adequate consideration she had assumed the support of the then infant four children of the marriage at her own expense. The decree of divorce made no mention of the separation agreement and contained no provision whatever relative the custody of the children or their support. A little over a year later defendant's motion to open her default was denied but without prejudice to a motion for modification respecting the custody and support of the children. No formal order appears to have been entered upon the denial of that motion but thereafter defendant's motion to open her default and in the alternative for a modification of the decree so as to require the plaintiff to assist in the support of the children was denied in toto by an order dated May 14, 1948. On appeal to this court that order was reversed and the matter was remitted to Special Term for a further consideration of the application for modification as respects the custody and support of the children. (See Van Dyke v. Van Dyke, 278 App. Div. 446. ) While the order was for a complete reversal of the said order of May 14, 1948, the intention was to reverse only the part thereof which denied the motion for the said modification. (See Van Dyke v. Van Dyke, supra, p. 448.) The matter thus remitted came before the Albany Special Term and resulted in the order now appealed from which: (1) denied plaintiff's cross motion for the custody of the then only infant child of the parties and (2) granted defendant's motion for modification by awarding her the custody of such child, and directed payments by plaintiff for his future support together with a direction of payment by the plaintiff to defendant of divers sums for the support of all of the children during their respective periods of infancy while they were in her actual care and custody and wholly supported by her, from May 14, 1948. No issue is raised as regards the amount of the payments thus awarded, and otherwise the relief granted by the order now appealed from is that to which defendant was entitled on May 14, 1948. Order unanimously affirmed, with $10 costs.