Miller v. Miller

McGivern, J. P.

This is an appeal from an order entered January 21, 1971, Supreme Court, New York County (Spiegel, J.), partially granting motion to confirm Referee’s report in respect of support of the defendant and for the education and support of the children of the parties, and directing the posting of a bond. We affirm, with costs.

The Special Referee found that while the defendant wife was in the hospital, May, 1966, the children were permitted tp “visit” her divorced husband in Connecticut, he, a psychiatrist, having then remarried; to be exact, he married a patient, after a Mexican divorce. In August, she, the wife herein, requested the return of .the children, custody having been previously awarded her by the New York courts in 1963, and reaffirmed by a modified order, dated February 9, 1966. Instead of returning the children, he entered into Connecticut litigation, forcing his wife (the defendant) to undertake the needless expense of battling him through the Connecticut courts although she held a New York decree in hei^ favor. On final appeal, the Supreme Court of Connecticut, in 1969, stated: “ it is settled in Connecticut that a custody decree rendered by a sister state is entitled to full faith and credit provided that the court which rendered the decree had jurisdiction. * * * Therefore, the trial court was correct in holding that the Probate Court committed error by not recognizing the New York custody decree under -the full faith and credit clause of the United States constitution.” (Miller v. Miller, 158 Conn. 217, 220, 222.) Not satisfied, the husband entered the Federal courts, extending the needless litigation until November 24,1969, when certiorari to the Supreme Court was denied, although since August 1966, he had been in utter contempt of an order of the Supreme Court of the State of New York.

We find the minority view irreconcilable with the case cited in support of their own conclusion, which, to the contrary, stands for the holding a husband cannot flout an order of a New York court and profit by his own intransigence. (Denberg v. Frischman, 26 A D 2d 266.) Said Steuer, J. (p. 267): “ It is recognized that the situation most frequently arises where the husband flouts the order of the court by either interfering with the wife’s custody or influencing the children to stay away from, the home she has provided for them. A strong public policy warrants recovery as a preventive of this type of conduct. (Nichols v. Nichols, 306 N. Y. 490; Olmstead v. Olmstead, 24 A D 2d 605, affd. 18 N Y 2d 652.)” Later cases have reasserted the same elementary principle. (Abraham v. Abraham, 28 A D 2d 864; Goldberg v. Berger, 31 A D 2d 637.)

Thus, we agree with Special Term’s characterization of the husband’s conduct : ‘ ‘ Contumaciqus refusal to comply with custody orders. ’ ’ And we agree also with the finding of the Eef eree: “ The plaintiff should not be rewarded for unlawfully keeping the children in violation of the order of this Court.” Any other view would work havoc and raise hob with .the custody decrees of our New York courts.

In voting to affirm, it is our view that, if anything, Special Term was overly generous in crediting him for support until January 23, 1968, when the stay he achieved in the Connecticut courts expired.