[Copyrighted Material Omitted]
[144 N.Y.S.2d 496] Orville R. Dunn, Champlain, for Lou Ada Guyette Dovel, intervenor-appellant.
Harold F. Tucker, Plattsburgh, for Wilbur J. Guyette, Jr., petitioner-respondent.
Before FOSTER, P. J., and BERGAN, COON, IMRIE, and ZELLER, JJ.
In 1943 Wilbur Joseph Guyette, Jr., and Lou Ada Dick were married at Denver, Colorado. Thereafter they lived in New York together. Two [144 N.Y.S.2d 497] children were born in this State, one now about eleven years old and the other about seven years old. On December 28, 1952, the parties separated. The wife took the two children with her and went to Colorado where she had resided before the marriage. The husband continued to reside in New York.
After the wife and the children had been in Colorado for several months, the wife instituted a proceeding in the District Court of Denver which has a general jurisdiction in Colorado which includes the authority to make provision for the care and custody of children. The proceeding resulted in a decree April 23, 1953, awarding custody and control of the children to the wife and directing the husband to pay $120 a month for the support of the children.
The wife then took the children to Wyoming, at a date which does not appear on the record before us, and there instituted in the Wyoming District Court an action for divorce against the husband. No personal jurisdiction of the husband was obtained by the Wyoming court and he did not appear in the action. On December 12, 1953, the Wyoming court entered a judgment of divorce against the husband dissolving the marriage. The
judgment further provided 'That the plaintiff be and she is hereby granted the full and complete care, custody and control of said two minor children.'
During the pendency of the action for divorce in Wyoming there was pending in the New York Supreme Court, Clinton County, an action instituted by the husband for a judicial separation. A judgment by default was entered in the New York action in favor of the husband on December 30, 1953. Personal jurisdiction of the wife was not obtained by the New York court; she was served with process outside the state and she did not appear in the action. We are not advised when this action was instituted but we assume from the sequence of dates that both the Wyoming and the New York actions were pending in parallel courses together during some period before the entry of either judgment.
The New York judgment recited the finding that the wife had abandoned the husband and granted judgment of judicial separation on that ground. It adjudged 'that the plaintiff be, and he hereby is, awarded sole care, custody and control' of the children. It is not disputed that the court found the wife as well as the husband to be a resident of New York and to have abandoned the husband in New York.
Within two months of the entry of the Wyoming judgment, the wife having remarried and alleging her residence to be in Denver, filed on February 4, 1954, a complaint in the Colorado District Court as Lou Ada Guyette Dovel for relief which becomes material in the appeal before us. The complaint shows the proceedings for custody both in Colorado and in Wyoming as well as the proceedings before the New York Supreme Court; alleges the husband to be in arrears under the earlier Colorado [144 N.Y.S.2d 498] decree in the sum of $960 and that the children, living in Colorado, are 'in dire need of the sare, support and financial assistance' applied for and that the husband is able to provide such support.
The complaint asks the Colorado court to act as a court in the 'initiating state' under the Uniform Reciprocal Enforcement of Support Act which both Colorado and New York have enacted, Colorado Rev.Stat. 1953, 43-2-1 et seq., L.1951, Chapter 151; N.Y.L.1949, ch. 807 as amended, Unconsolidated Laws, Title 7, and to transmit the papers required by the reciprocal statutes to the Children's Court of Clinton County and that the husband be required to pay for the support of the children.
The District Court ordered that copies of the wife's complaint and certain other papers relating to the Colorado statute be
transmitted to the Clinton County Children's Court 'for appropriate action under this act and under the Uniform Reciprocal Enforcement of Support Act * * * of New York' and that the husband 'be compelled to furnish support.' This is in conformity with the procedural requirement of New York's statute. § 6 (Unconsolidated Laws, § 2116). The underlying policy of the state so far as it is material here is expressed in section 3 (§ 2113). It is that 'A husband in one state is hereby declared to be liable for the support of * * * any ...