Parker v. Parker , 413 N.Y.S.2d 388 ( 1979 )

Kupferman, J. P. (dissenting in part).

If the facts were solely as set forth in the majority opinion, I would concur. However, they are not.

Shortly after the divorce proceeding commenced, the wife’s sister presented the legal papers to their father. He then took them to his attorney. However, although a notice of appearance was entered on appellant’s behalf, she directed that no further action be taken.

There are other aspects of appellant’s background which need not be enumerated here, which make it clear that custody of the infant child should be with the father and that a divorce was justified. I would affirm but, if the appellant is now in need of support, there is a proper vehicle for consideration thereof. (See McMains v McMains, 15 NY2d 283; Morse v Morse, 45 AD2d 370, app dsmd 36 NY2d 911.)

Fein, Lane and Sandler, JJ., concur with Birns, J; Kupferman, J. P., dissents, in part, in an opinion.

Order, Supreme Court, Bronx County, entered on November 16, 1977, reversed, on the law and on the facts, without costs and without disbursements, the Referee’s report is disaffirmed, the motion to set aside the stipulation dated May 8, 1975 granted, the judgment of divorce entered in the Supreme Court, Bronx County, on June 11, 1975, is vacated, and the defendant afforded 30 days from the date of service of a copy of this court’s order, with notice of entry, to serve her answer in this action.