Altschuler v. Altschuler

248 A.D. 768

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1936
• Status: Published

Opinion

In a,n action for separation in which the defendant wife counterclaimed for and was awarded an absolute divorce with custody of the two children of the parties, the plaintiff being accorded the right of visitation, order in so far as it denies plaintiff’s motion to amend the final decree of divorce by eliminating therefrom the provision requiring plaintiff to pay to the defendant the sum of fifteen dollars a week for the support and education of each of the children (nunc pro tunc as of October 1, 1934), affirmed, with ten dollars costs and disbursements. The defendant wife remarried subsequent to the decree and with her then husband and the children removed to California, where said husband had obtained employment. These circumstances, in our opinion, furnish no reason for the relief of the plaintiff from the obligation to support his children as directed by the decree, the welfare of such children being the paramount consideration. (See Kane v. Kane, 241 Mich. 96; 216 N. W. 437; Hart v. Hart, 266 Mich. 564; 254 N. W. 207; Epstein v. Epstein, 234 Mich. 200; 207 N. W. 894.) This case involves a judicial decree and for that reason is distinguishable from those in which contracts of separation were presented, in which latter cases the recovery of amounts payable to the wife by the husband for support of the children has been denied. (Muth v. Wuest, 76 App. Div. 332; Duryea v. Bliven, 122 N. Y. 567.) The case of Harris v. Harris (197 App. Div. 646), properly read and considered in the light of its own peculiar facts, is not at variance with our ruling. Lazansky, P. J., Young, Carswell, Johnston and Taylor, JJ., concur.