
    Helen Hicks Earle, Appellant, v. Charles Earle, Respondent.
    Second Department,
    October 24, 1913.
    Husband and wife — divorce — amendment of judgment providing for maintenance of child.
    Where a decree of divorce awards to the plaintiff the sole maintenance, care, custody and control of her child, she having waived counsel fees and alimony, her financial standing being such that she required no support for herself or daughter, an application to amend the judgment so as to require the defendant to maintain the child will not be granted unless it appears that the mother is unable to provide proper maintenance.
    Application remitted to Special Term.
    
      It seems, that if the defendant be charged with maintenance and the child is in other custody a provision should be made which will insure that moneys paid by the defendant will be devoted exclusively to the infant’s maintenance.
    
      Appeal by the plaintiff, Helen Hicks Earle, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Westchester on the 17th day of June, 1913.
    
      Frank Trenholm, for the appellant.
    
      Carlisle Norwood, for the respondent.
   Jenks, P. J.:

The plaintiff appeals from an order of the Special Term that denies her application to amend her judgment for absolute divorce by insertion of a provision requiring the defendant to maintain the infant child now in the custody of the plaintiff pursuant to that decree.

In 1903 the defendant obtained a decree of separation for abandonment. By that decree the sole maintenance, care, custody and control of the child Charles was awarded to this defendant, of the infant child Caroline was awarded to this plaintiff. In 1912 this plaintiff obtained a decree of absolute divorce, which did not make provision for alimony, but contained a provision similar to that in the said separation decree as to the said children. It appears that the defendant asserted that the adultery charged was committed with the connivance and by the procurement of the plaintiff, and that the defendant determined not to plead his defense provided the plaintiff made no claim for alimony. Prior to the trial a stipulation was entered into between the parties that the plaintiff waived and agreed to waive any rights to counsel fee or alimony, her financial standing being such that she requires no support for herself or daughter.” The action was not defended.

The sole question is that of the proper maintenance of the said infant Caroline. When in such an action the decree awards the custody of an infant to the mother as the successful plaintiff, the courts in other jurisdictions are not in accord upon the question whether the father may be compelled to respond for necessaries furnished thereafter for maintenance of the infant. The argument on the one hand is that the father should not be compelled to support the child, because he had no right to take the child and support it himself or to employ any one to support it without the mother’s consent. The argument on the other hand is that the duty of support is not to be evaded by the misconduct of the father which resulted in his loss of custody. (See 2 Bish. Mar., Div. & Sep. § 1223, and cases cited.) But the decree in this case is not silent, for it contains a provision for the “maintenance ” of this infant child by the mother, as well as for her “ care, custody and control” of it. Irrespective of any. bargain between the parties, I assume that the court was moved for good reasons to make such an affirmative provision. And I cannot assume that the custody of this infant was thus awarded for the reason that the mother stood ready to maintain it, because such an award was made to the innocent party, as was natural. The paramount consideration is the suitable maintenance of the child in accord with its station in life. Both parents are charged - with such maintenance; primarily that duty is cast upon the father, as he generally has “more ample means.” (Furman v. Van Sise, 56 N. Y. 435.) But as this decree has cast maintenance upon the mother, I see no present reason to disturb its provisions, unless the mother is now unable to afford proper maintenance. She represents her present inability so to do. The defendant admits his present ability, but denies the plaintiff’s inability. I thin k that with an eye single to the good of the child the learned Special Term should have informed itself as to the ability of the plaintiff, for, if her inability exists, its refusal to charge the defendant with the duty worked injury to the infant. The defendant asserts his willingness to support the child, provided its care and custody be committed to a specified third person, who apparently would be a proper custodian if neither the mother nor the father should be considered. But the duty of maintenance may be required of the defendant irrespective of any such condition. If the plaintiff be an improper person as custodian, in view of her morals, or if the present surroundings of this child are adverse to its decent tutelage, there is a remedy, for, as I have said, the chief consideration is the welfare of the infant. If the defendant be charged with maintenance, then, so long as the infant is in any other custody than that of the defendant, there should be made such restrictions as insure that all moneys furnished by the defendant should be applied exclusively to the infant, and not misapplied by any person directly or indirectly.

The order must he reversed, without costs, and the application is remitted to the Special Term.

Burr, Thomas, Carr and Rich, JJ., concurred.

Order reversed, without costs, and application remitted to the Special Term.  