Smith v. Smith , 238 A.D. 799 ( 1933 )

Order granting motion to modify final decree in respect to the child Barbara reversed on the law and the facts, without costs, and motion denied. The decree, however, is modified so as not to permit the mother to take the child without the State except by permission of the court. Order appointing Helen Nichols Smith general guardian reversed on the law and the facts and motion denied, without costs. In view of the foregoing, the appeals from the order denying motion to confirm the report of the official referee refusing to modify the decree and from the order denying motion to vacate service of order in general guardianship proceedings are dismissed. The conduct of this mother was indiscreet. The record, however, which was adduced in the fall of 1932, shows the criticized conduct to have begun in April, 1932, and does not show that it continued beyond the early part of July. Hence the drastic action of taking a twelve-year-old girl from her mother should not ensue under such circumstances, although if some of the alleged conduct were continued or resumed, a proper case might well exist for taking the custody of the child from the mother. This view on the merits makes it unnecessary to pass upon the other objections to the orders appealed from, some of which objections seem to have validity, but a determination respecting them is not necessary in view of the decision on the merits. Lazansky, P. J., Kapper, Carswell, Seudder and Davis, JJ., concur.