A New York Family Lawyer said sometime in January 1952, the parties got married. They lived together as husband and wife until 1959. They had no issues despite the desire of both parties to have children. They were both of the Jewish faith and their marriage was consummated in accordance with orthodox Jewish tradition.
A New York Child Custody Lawyer said that in 1958, the parties allegedly decided to adopt a child. In October thereof, they were advised of the possibility of adopting a child in Florida. Thus, the wife went to Florida for that purpose. The husband bought the round-trip transportation tickets, escorted his wife to the airport in New York and communicated with her by telephone about the child while she was in Florida. When the child was born, the mother made arrangements at the hospital to take the child to Brooklyn where the parties had resided. Shortly after the child’s birth, in November, 1958 the wife did bring the child with her to New York. The husband together with his mother met his wife and the child at the airport, and escorted them to the apartment where the parties lived together. Upon arrival at their home, the wife found a bassinet, diapers and baby bottles. The baby continued to reside there with the husband and wife until they separated.
According to the wife, she and her husband had agreed to adopt the child. According to the husband, on the other hand, he did not agree to the adoption, he never wanted the child and he had no idea how the baby articles got into his apartment.
A Nassau County Child Custody Lawyer said that the identity and present whereabouts of the natural parents of the adopted child are unknown.
Thereafter, an action for divorce was filed by plaintiff-husband. Defendant-wife answered and counterclaimed for a divorce and for support for herself and their allegedly adopted child.
At trial, the husband withdrew his complaint and amended his reply to the counterclaim so as not to contest the wife’s right to a divorce, but did continue to put in issue the wife’s right to support for herself, his obligation to support the infant and the matter of the amount of counsel fees to be awarded to the wife’s attorney.
The husband was permitted to amend his reply and assert an affirmative defense of the six year statute of limitations against the child support claim.
At the end of the trial, the court awarded the wife a divorce but reserved decision on the questions of support and counsel fee. Subsequently, and on the court’s own motion, the court appointed a guardian ad litem for the child, because of the apparent conflict of interest between the husband and wife. The guardian rendered very lawyer-like and commendable services on behalf of the infant; his report was served and filed; and, at his suggestion, the trial was reopened and additional proof was offered as determinative of the rights of the child.
Indisputably, this is a case of first impression as to the question of the obligation to support a child by one, neither its natural nor foster parent. Ordinarily the court would not be interested in the religious affiliations, or lack thereof, of litigants. In this case, however, that has an important bearing upon the outcome. And, based on the proof presented and the credibility of witnesses, the court was more inclined to lean on the wife’s testimony.
First, the agreement by the husband and wife to adopt the child, even without any formal adoption and in the absence of the natural parents, as between the parties and this child, requires that the court find that both parties must provide for child support. Even assuming that there was no agreement to adopt the child, the marriage contract itself creates that obligation on the husband’s part. Even when the husband does not know of the wife’s actions, he is responsible for them and what the wife does for she does this for the husband as well as for herself.
Second, the husband not only knew but agreed to what his wife did.
Here, when the parties were living together with the child in their household, the husband performed the obligation he assumed to support the child. However, now that they are no longer living together, he seeks to avoid his obligation.
Factual proofs that the husband did assume his obligation to the subject child are the following: shortly after the arrival of the child into his household, in accordance with Jewish tradition, he went to the local synagogue where he named the child after his maternal grandfather; he claimed the child as a dependent on his income tax return; while he had nothing to do with registering the child in her schools and he is not responsible for his name appearing on their records as the child’s father, he never protested to such schools that he was not the child’s father; his wife went to Florida with his full knowledge and consent for the purpose of adopting this child; the wife, in going there, was acting for him and for herself; the wife continued to act for both of them in bringing the child from Florida to New York; and, when he received them into his home in New York, he supplied the child with the necessities of life and acknowledged the child as his ‘darling daughter’ and called himself her father.
Obviously, the husband fully ratified, confirmed and adopted as his own acts everything his wife had done for and with the child.
Third, the lapse of several years during which the husband failed to fulfill his obligations as a ‘father’, did not relieve him of that obligation to support her until she reaches her majority or is emancipated, whichever occurs first.
Fourth, reference has been made to the Torah (the Pentateuch) and the Talmud. Similarly, commentary is found in the Midrash Rabbah (Exodus 46:5) to the effect that he who raises a child is called the father, not the one who begot it. Also, if a note is presented in which a man refers to himself and his child, the child is considered as his even though not his natural child. The duty of a father to support his minor children seems to have been first recorded in the Talmud in the decree of the Council of Usha (b. KET. 49b). It is codified in the Shulchan Aruch, Even Hoezer 71.
Fifth, the defense of statute of limitations was dismissed as without merit. The husband’s obligation here was a continuing one; thus, his breach was and is a continuing one.
Sixth, while it was not pleaded as a defense, the husband argued that a determination of the Family Court is res judicata. The case of Loomis v. Loomis determined that question adversely to the husband.
According to the husband, his argument was based on a proceeding for support which started in the Circuit Court of Dade County, Florida, and on a proceeding resulting therefrom in the Family Court Division of the Domestic Relations Court of the City of New York. The records in the Family Court are in evidence and include that part of the Florida Court record forwarded to the NY Family Court.
In the Florida Court, although the child was mentioned in the petition, the petitioner wife asked for support only for herself grounded on the fact of failure and neglect of the husband to support her. Physically stricken from the printed portion of that paragraph of the petition are the words ‘and other dependents’ and the ‘Wherefore’ clause recited: “Petitioner prays for such an order for support directed to said Respondent (the husband).”
The court cannot now speculate why no support for the child was asked for in the Florida proceeding nor will it examine the Florida law to determine whether the wife had a right to ask for that relief there. The adjudication in the Florida court bars a subsequent action for such relief as could have been originally obtained. The Florida court not only did not make any determination of the matter but, on 24 October 1960, it also refused to make an order because it was: “without jurisdiction to enter any order that would be binding on the respondent (the husband) in the absence of service upon the respondent” reasoning that it was a matter to be determined by the court of the Asylum State; that is, where the husband was located.
The specific events that took place in relation to the Florida proceeding are as follows:
On 18 August 1960, a hearing was held in the Family Court, Kings County of the Domestic Relations Court of the City of New York in the proceeding instituted in that court on the basis of the aforementioned proceeding in the Florida court. At that time, petitioner wife was not present. Instead, an Assistant Corporation Counsel appeared. Respondent husband and his lawyer were present. After the respondent was sworn, the court made inquiry about the child. The Assistant Corporation Counsel answered: ‘The application is for wife only. Adoption has never gone through.’ Whereupon the court stated: ‘All right. No order.’ A proposed form of order directing respondent to pay for support was in the file, incomplete and unsigned; no order in the file either of dismissal or otherwise disposing of or terminating the proceeding. Notice was later given to the Florida Court, together with a copy of the minutes of the proceedings.
On 24 October 1960, the Florida Court conducted a hearing at which petitioner appeared. That testimony and the Florida Court’s determination were thereafter forwarded to the Family Court in Kings County.
On 6 January 1961, respondent husband and his lawyer appeared again in NY’s Family Court pursuant to a summons issued to him. No transcript of this proceeding was offered in evidence at bar, and none has been supplied. There is, however, an endorsement on the Family Court papers reading: ‘No order of support is made at this time.
Under the rules, whether the court has a right to determine an issue not presented is unimportant because in order to sustain a plea of res judicata, in addition to any decision, there must be an order, decree or judgment. Indeed, well settled is the rule that the same rights of appeal apply in the Family Court as in other courts of the state at bar. However, before there can be such an appeal, an order or judgment must be entered.
Here, in the Family Court proceeding, there was no such order, decree or judgment. In view of the court’s decision of ‘No order is made at this time’, the court must find that the proceeding was left pending undetermined. Whether or not it may be deemed discontinued, withdrawn or even dismissed because of lapse of time is insignificant. As proven, there was and is no binding order, decree or judgment that may be pleaded as a bar to the wife’s request for support of the child. Moreover, the child is now represented by a guardian ad litem. Any plea in bar that could be asserted against the wife or against any independent cause of action in her own right cannot be so asserted against the infant.
Accordingly, the court granted the divorce in favor of the defendant wife against the plaintiff husband; considering the financial condition of the parties, their earning capacity, their earnings and their needs, and the needs of the infant, the court fixed alimony in the amount of $15.00 per week for the support of the wife commencing 4 October 1968, the day of the trial at bar, $35.00 per week for the support of the child commencing 11 March 1968, the date of the service of the answer at bar containing the counterclaim, $500.00 for the services of the guardian ad litem, and $750.00 for the services of defendant wife’s attorney and his disbursements.
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