attorney fees for defense to father’s habeas corpus proceeding to change custody held necessaries
How later courts described this case
- attorney fees for defense to father’s habeas corpus proceeding to change custody held necessaries
Written by the judges who cited it.
The opinion
Nolan, P. J.
(dissenting). There can be no doubt that legal services rendered to a wife may, under varying circumstances, be classed as necessaries (cf. Dravecka v. Richard, 267 N. Y. 180 ) for which appellant might have been liable while the relationship of husband and wife existed between appellant and his former wife. I am unable to agree, however, that appellant’s obligation to furnish necessaries to his wife survived the judgment of divorce in Vermont, which terminated the marital relationship, except insofar as that obligation was continued in the form of an award of alimony (cf. Fox v. Fox, 263 N. Y. 68 ; Turner v. Woolworth, 221 N. Y. 425, 428 ; People ex rel. Commissioners of Public Charities & Correction v. Cullen, 153 N. Y. 629, 635, 636 ). Neither do I agree that appellant may be compelled in this action to pay for legal services rendered on behalf of his children, in addition to paying the amounts which he is required to pay for their support by the judgment of *128 divorce. Concededly, appellant’s duty to support his children• survived the judgment of divorce, but his liability is limited to the amounts fixed by the court in that judgment, except as otherwise provided by statute (cf. Langerman v. Langerman, 303 N. Y. 465 ) until and unless the judgment of divorce shall be modified (cf. Karminshi v. Karminshi, 260 App. Div. 491 ; Forges v. Louis-Dreyfus, 280 App. Div. 277 ; Dravecka v. Richard, 267 N. Y. 180 , supra).
The order, insofar as appealed from, should be reversed, and appellant’s cross motion should be granted.
Ughetta, Pette and Brennan, JJ., concur with Beldock, J.; Nolan, P. J., dissents in opinion.
Order, insofar as appealed from, affirmed, with $10 costs and disbursements.