People ex rel. Rowlee v. Rowlee , 62 Misc. 2d 64 ( 1970 )

J. Robert Lynch, J.

Joanne Judson Rowlee has served a notice of appeal from an order awarding custody of their children to their father Elon Kievan Rowlee, II, in the within habeas corpus application. She moves to proceed in her appeal as a poor person.

The mother is without funds. Her attorney has volunteered to represent her on appeal without a fee and he has certified that there is merit to the appeal. The father has no objection to her proceeding as a poor person as long as permission does not hinge on his having to pay any of her expenses, chief of which will be for a stenographic transcript. The County of Onondaga, that will have to pay for the transcript if permission is granted (CPLR 1102, subd. [b]), argues that its responsibility should only be secondary to that of the father.

It is basic to the county’s argument that the appellant, in her rights under section 237 of the Domestic Relations Law, has an asset that she has not disclosed and that denies her poor person status. It is true that subdivision (b) of that section does empower the court to direct that the mother’s expenses in a habeas corpus application concerning their children’s custody may be paid by the father. However this direction cannot be made at an intermediate stage but only ‘ ‘ in the order * * * by which the particular application * * * is finally determined ”. That will be when the appeal is disposed of (McBride v. McBride, 119 N. Y. 519).

The mere possibility of recouping one’s expenses in the future cannot be such an asset as to deny one status as a poor person. To hold otherwise would effectively deprive the mother of her right to appeal.

The answer is suggested by CPLR 1103. That section authorizes the court to distribute any ultimate recovery by one proceeding as a poor person. The appellant mother, being presently qualified, is entitled to so proceed. If she later realizes a recovery through the court’s final determination that the father should pay her expenses, the county may look to that fund for reimbursement. Permission to proceed as a poor person is granted.