People ex rel. Barker v. Stringer , 97 N.Y.S. 42 ( 1905 )

McLaughlin, J.:

The relator and the appellant are the parents of an ‘illegitimate child, now a little o.ver four years of age.' A dispute, arose between them as to» her custody, each claiming to be entitled" thereto, and in March last — the child being in the custody of the mother—■ the relator obtained a writ of habeas corpus with a view of having it determined that he' was entitled to her"custody.. ’ On the return of the -writ it appeared that the parties had entered into a- written stipulation to the effect that the child was to be placed in the Convent of the Sacred Heart, or such other Roman ■ Catholic convent as the court might thereafter designate — there to remain under the direction and' supervision of the Supreme Court until she attained legal age, and to be educated and cared for there, the necessary expenses for the support, maintenance and education to be paid by the relator, who was also to pay to the appellant’s counsel the sum of $1,000, in three installments, at the times specilied. The stipulation also contained other provisions which it. is unnecessary to here mention. The stipulation was, at the request of both parties, and, on motion of. their respective counsel, incorporated into and made the order of the court in disposing of the habeas .corpus proceedings. The child was not placed in the Convent of the Sacred Heart, nor in any other Roman Catholic convent thereafter designated by the court. She was placed by the mother — and, according to her contention, with the consent of the relator — in a private institution, where she- remained for a short time, when she was taken out by the mother and in whose custody she has since remained. " -

The relator- did not, while the child was in- this institution, nor has he since, paid anything towards her support, education and maintenance, and has paid only the first installment of the counsel fee.referred to, though the second is past due.

Hpon papers showing these facts, the mother of the child moved to punish the relator for contempt in not complying with that provision of the order which directed that he pay for the support, education and maintenance' of the child and also counsel fees. The motion was denied and she has appealed.

I am of the opinion that this motion was properly denied. The relator did not stipulate to pay for the child’s support, maintenance and education except she be placed in the Convent of the Sacred Heart or some other Roman Catholic convent designated by the court, and the order. did not direct, him to make such payment unless the child tie delivered to the custody of the Convent of the Sacred Heart or some other Roman Catholic convent designated by the . court. The fact that the parties entered into another arrangement by which the child was placed in some other institution and the relator did not there pay for her support, education and maintenance, is not a ground for punishing him for contempt in not obeying the order of the court, because the court had never directed him' to make such payment. Hntil the child, therefore, has been placed either in the Convent of the Sacred Heart, or some other institution designated by the court, the fact that he refuses to pay cannot be made the basis of proceedings to punish him for contempt in not complying with the order of the court.

. The propriety of the court making an order of this character is not before us. The parties voluntarily submitted themselves to the jurisdiction of the' court and united in asking it to make the order which it did, and the court, .upon such request,, aiid deeming it for the best interest- of the child, made the order, and it hardly lies with the relator now to say that he will not obey it.

But he cannot he compelled to carry out its provisions' Until the appellant herself has placed the child where she was directed to place her. .

Hor do I think the appellant is in a position .to ask the court to punish the relator because he has not paid her counsel as directed. She herself has not complied with' the order, aiid until she does so, by delivering the custody of the child either to the.Convent of the-Sacred Heart or to some other Roman Catholic institution desia-

nated by the' court, she is not in a position to aslc that the . court exercise its powers to compel the relator to pay the amount directed or in default thereof punish him for a contempt of court.

The order appealed from,.therefore, must be affirmed, with ten dollars- costs and disbursements, without prejudice, however, to the appellant’s right to renew the motion in so far as it 'relates.'to the payment of counsel fees after she complies with the order by delivering the custody of the child as therein directed.

O’Brien, P. J.,. Ingraham, Clarke and Houghton, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements, without prejudice to appellant’s right to renew as stated in opinion.