Burden v. Burden

272 A.D.2d 817

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 5, 1947
• Status: Published

Opinion

Order adjudicating plaintiff to be guilty of contempt of court in having refused to surrender a child of the marriage of the parties to the custody of defendant, in having refused to disclose the whereabouts of the child, and in having participated in causing the child to refrain from visiting the defendant, reversed on the law and the facts, without costs, and the motion denied, without costs. The refusal of the daughter to stay with the defendant up to and including the first day of July, 1944, was clearly and primarily due to the unnatural antipathy of the child towards her father, in which attitude the child was undoubtedly influenced by the plaintiff, but not to such a proven degree that it can be found that the plaintiff advised, solicited or procured the daughter not to visit the defendant. The conduct of plaintiff on July 6, 1944, cannot be held to have been an act of participation in causing the daughter to refrain from visiting the defendant. Defendant appeared at the home of plaintiff, accompanied by a representative of his attorney, without notice to the plaintiff. The obligation of the plaintiff, in whose custody the child then was, was to have the child available to the defendant for his custody during the times he was entitled to have custody under the judgment, as amended. But a temporary absence of the child on July 6, 1944, was justifiable, in the light of the failure of the defendant to give reasonable notice. There is no proof that, at the time of the demand, plaintiff knew of the precise whereabouts of the child. Her brusque refusal to volunteer information, though with knowledge of the proximity of defendant, did not constitute a violation by her of -the mandate with respect to custody contained in the judgment. The defendant failed to give plaintiff reasonable notice to produce the child, either before July 6,- 1944, or on that day, so as to impose upon her the duty of having the Child, then in her custody, available to defendant at the time demand was made by him. Hagarty, Acting P. J., Carswell, Johnston, Holán and Sneed, JJ., concur.