Opinion
July 10, 1967
Order of the Supreme Court, Queens County, dated May 13, 1966, which decreed that, nunc pro tunc as of June 22, 1965, the petitioner was temporarily awarded custody of the two children, affirmed, without costs. Judgment of said court, dated September 23, 1966, modified on the law and the facts and in the exercise of discretion by: (1) striking out the second decretal paragraph, denying respondent rights of visitation, and by substituting therefor provisions fixing the respondent's rights of visitation of his children in accordance with the provisions therefor in the agreement, dated September 21, 1960, which was incorporated into the Maryland divorce decree, dated September 30, 1960; (2) striking out the third decretal paragraph, enjoining removal of the children from petitioner's custody or from this State; (3) amending the fourth decretal paragraph, as to support of the children, by directing payment of the arrears in two equal installments; and (4) by striking out the fifth decretal paragraph, awarding a counsel fee. As so modified, judgment affirmed, without costs. The time for payment of the installments of arrears is extended until 30 and 90 days, respectively, after entry of the order hereon. The implied finding that the respondent would remove the children from this jurisdiction and would not return them to this jurisdiction if he were given rights of visitation of his children is reversed and a contrary finding is made. The proceeding herein is one pursuant to article 4 of the CPLR, instituted by an order requiring appellant to show cause why a judgment should not be entered making the children wards of the court, awarding custody thereof to the petitioner, restraining their removal from this State and determining the appropriate conditions for the exercise of the appellant's rights of visitation. The parties resided in Maryland when a divorce action was instituted therein, although the petitioner moved to Washington, D.C. before the divorce decree was granted to her on September 30, 1960. Inter alia, an agreement between the parties dated September 21, 1960 and the divorce decree into which it was incorporated, awarded custody of the children to the petitioner, fixed specific rights of visitation, dependent on whether the children were living in or outside of the Washington area, awarded $100 a week for the support of the children, awarded $3,500 to petitioner's attorneys as counsel fees and arrived at a property settlement, intended to settle all rights between the parties accruing out of the marriage, insofar as they might be settled by law. Under Maryland law, a final property settlement between a husband and wife may be incorporated into a divorce decree. It will not be regarded as alimony and it may not be modified thereafter by the court ( Schroeder v. Schroeder, 234 Md. 462; Grossman v. Grossman, 234 Md. 139). Under Maryland law, a wife has no right to obtain an award of a counsel fee after a final decree is entered ( Tome v. Tome, 180 Md. 31; Berman v. Berman, 191 Md. 699). The agreement, by providing for different rights of visitation, dependent on whether the children were residing in or outside the Washington area, authorized the petitioner to move from Washington with the children. She moved to New York with the children to rejoin her parents and the appellant moved to Washington, D.C. Bitter disputes arose between the parties as to appellant's visitation rights which the petitioner had denied him. Various orders were entered in the Maryland court which, inter alia, authorized appellant to suspend payments for the support of the children until petitioner purged herself of contempt in denying appellant's visitation rights. Only a few of said orders will be discussed. By an order, dated July 30, 1963, the Maryland court awarded custody of the children to appellant unless the petitioner showed cause to the contrary on August 23, 1963. By an order, dated August 26, 1963, the Maryland court adjudged petitioner guilty of contempt, directed the Sheriff to take and detain her until she purged herself of contempt and directed the Montgomery County Circuit Court Probation Department to make an investigation into the circumstances surrounding the requested change of custody. By an order to show cause, dated September 25, 1963, returnable October 11, 1963, the petitioner instituted the instant proceeding in New York. On October 29, 1963, after a report had been filed by the Montgomery County Probation Department of Maryland, which did not see or interview the petitioner or the children, and, in the absence of the petitioner, the Maryland court modified the final divorce decree by awarding the custody of the children to appellant and rescinding the provisions of the decree relative to the support and maintenance of the children, subject to the further order of the court. The decree was so modified because of the petitioner's interference with appellant's rights of visitation. On or about October 30, 1963, appellant came to New York with a private detective to take custody of the children as authorized by the Maryland divorce decree, as modified on October 29, 1963, but he left this State without the children. On October 30, 1963, the petitioner obtained an ex parte order in the New York proceeding enjoining appellant from removing the children from the petitioner's custody or from this State, pending the hearing in the New York proceeding. The petitioner moved in the Maryland action to vacate the order of October 29, 1963, claiming in substance that neither the parties nor the infants resided in Maryland and that, therefore, the court lacked jurisdiction over the children. The motion was denied or dismissed on or about May 26, 1964. The petitioner appealed and, on May 26, 1965, the Court of Appeals of Maryland affirmed, pointing out that the petitioner was not foreclosed from seeking the right to visit the children or, when appropriate, reapplying for custody. Then the instant proceeding pursuant to article 4 of the CPLR, which had been dormant, was revived. Appellant filed an answer alleging, inter alia, that the petitioner was prosecuting this proceeding for the purpose of having this court deny full faith and credit to the court of another State. The proceeding resulted in a judgment which (1) awarded custody of the children to the petitioner, (2) decreed that appellant be denied rights of visitation until such time as he demonstrated that he was "willing to desist from his forcible attempts to remove the children from this jurisdiction and provide some plan embodying safeguards for petitioner in that regard", (3) decreed that all persons under the father's control be enjoined from removing the children from the petitioner's custody or from this State, (4) ordered appellant to pay $60 a week for the support of the two children, retroactive to June 22, 1965, with the arrears payable within 10 days after service of a copy of the judgment with notice of entry, and (5) ordered the respondent to pay $2,500 to the petitioner for counsel fees. In our opinion, when the relevant facts are considered, including the facts that the petitioner was authorized, by the agreement and the divorce decree, to move to New York with the children, the appellant resided in Washington, D.C. at the time of the hearing in New York; both parties have remarried and both appear to be qualified to raise the children; the Montgomery County Circuit Court Probation Department of Maryland did not interview the petitioner or the children prior to the modification of the divorce decree, and the petitioner was deprived of custody of the children and of support of the children, not because she was an unfit mother but because she was in contempt of court for depriving appellant of his rights of visitation, it should not be held that Special Term lacked jurisdiction or improvidently exercised its discretion by coming to a determination in conflict with the determination of the Maryland courts (cf. Matter of Bachman v. Mejias, 1 N.Y.2d 575). In our opinion, Special Term did not commit reversible error in awarding custody of the children to the petitioner (cf. Matter of Bachman v. Mejias, supra; Matter of Strecker v. Strecker, 10 A.D.2d 312; but see Eskin v. Eskin, 26 A.D.2d 680 ). Since she resides in New York, she may be punished in New York for contempt of court if she violates rights of visitation. We think that the provisions depriving the respondent conditionally of his rights of visitation and enjoining the removal of the children from this State were not justified by the record. When the father came to New York on or about October 30, 1963, to remove the children from this State, he was armed with a decree of the Maryland Court giving him custody of the children, subject to the further order of the court. In our opinion, the implied finding that the father would remove the children unlawfully from this State or keep them unlawfully out of this State, if he were granted rights of visitation, is not supported by the proof and a contrary finding is made. Insofar as support and counsel fees are concerned, there is statutory authority for the award of support in this proceeding (Domestic Relations Law, § 240) and for an award of counsel fees (Domestic Relations Law, § 237, subd. [b] see Practice Commentaries under section 240 of McKinney's Domestic Relations Law, pp. 361-362, and under section 237 thereof, p. 293). It is our view that, in the circumstances herein, Special Term did not improvidently exercise its discretion in awarding support although we are modifying said award to give the appellant some time to pay the arrears. As to counsel fees, no request was made therefor until the conclusion of the oral proof, when petitioner's trial counsel said that she had not made any request therefor but would submit such a request. Apparently no request was submitted. In our opinion, the record does not justify such an award under the circumstances. Brennan, Acting P.J., Hopkins, Benjamin, Munder and Nolan, JJ., concur.