Opinion
November 30, 1954.
Present — Dore, J.P., Callahan, Bastow, Botein and Bergan, JJ. [See 285 App. Div. 807.]
We assume but do not decide that the original New York separation judgment is still entitled to enforcement. (Cf. MacKay v. MacKay, 279 App. Div. 350.) Such a determination may only be made upon a full disclosure of the facts including proof as to whether the children were subject to the jurisdiction of the Florida court. We view as improvident, however, the order made herein punishing the defendant for contempt when it appears that the New York judgment contained a provision by implication that the children would be available in this State for visitation by the husband. The wife having removed the children from the jurisdiction is not entitled to the extraordinary remedy obtained. Moreover, in view of the fact that the children have been removed to a foreign country for a period of years over the objections of the husband, we think upon the facts here presented that his application for relief from the provisions for the support of the children until they are returned to this jurisdiction, where he may resume his right of visitation, should have been granted to the extent of a temporary suspension of payments. Order unanimously reversed and the application to modify the decree of separation granted, without costs. Settle order on notice.