PORGES v. LOUIS-DREYFUS
280 A.D. 277 (1952)
Dolores N. Porges, Appellant-Respondent,
Guy P. Louis-Dreyfus, Respondent-Appellant
Appellate Division of the Supreme Court of the State of New York, First Department.
June 3, 1952.
Ben Herzberg of counsel (Alexis C. Coudert with him on the brief; Coudert Brothers, attorneys), for appellant-respondent.
James A. Delehanty of counsel (Alfred Rathheim, Harold M. Hoffman and David L. Schreiber with him on the brief; Buchter, Rathheim, Abrams & Hoffman, attorneys), for respondent-appellant.
CALLAHAN, J. P., and BERGAN, J., concur with HEFFERNAN, J.; SHIENTAG, J., dissents in part, in opinion in which VAN VOORHIS, J., concurs.
Plaintiff, at all times hereinafter mentioned, was an American citizen and defendant a French citizen. They were married in France on July 2, 1929. There are two children of the marriage; Dominique, a daughter born in France on November 1, 1930, and Gerard, a son likewise born in France on June 21, 1932. The matrimonial domicile was in France where plaintiff and defendant resided with their children during the continuance of the marriage.
On May 13, 1935, plaintiff applied to the Court of Civil Matters of Original Jurisdiction of the Department of Seine, sitting in Paris, for leave to commence a divorce action against defendant. In pursuance of the law of France, the court attempted to conciliate the parties but was unable to do so and entered an order of nonconciliation authorizing plaintiff to
proceed with the divorce action, which order also directed defendant to pay plaintiff for her support and that of the children a monthly alimony of 50,000 francs. Defendant duly appeared in the divorce action and the French court thereupon acquired jurisdiction of the subject matter and of the parties.
In the latter part of 1935, defendant requested plaintiff to transform the action into one for separation, so that there would be an opportunity to reconstitute the marital domicile. Plaintiff complied with such request and on February 12, 1936, the court entered a decree of separation which provided that defendant pay plaintiff for her support and that of the children 50,000 francs per month for three years, at the expiration of which time the question was to be reviewed.
Thereafter and on November 30, 1936, plaintiff applied to the court for leave to again proceed with her divorce action upon the ground that the attempt at rapprochement had failed. On the same day the court granted a second order of nonconciliation and authorized plaintiff to proceed with her divorce action.
On December 23, 1936, the French court granted plaintiff a final decree of divorce which provided that plaintiff have custody of the two children of the marriage and declared that defendant might freely see the children and that, upon consent of the defendant, he should pay to plaintiff for the support of the two children a yearly alimony of 200,000 francs for each child, payable monthly in advance. At that time 400,000 francs had a value of approximately $18,000. Between the date of the decree and the period involved in this action for necessaries there were several devaluations of the franc. Between October, 1947, and April, 1948, 400,000 francs had a valuation of about $2,600. The decree recites the participation in the divorce proceeding of the public prosecutor to whom the file of the case had been previously submitted. The primary function of this official is to see to it that the interests of the children of the marriage are properly protected and that adequate provision is made for them. Throughout the divorce proceedings plaintiff was represented by counsel chosen by her and she concedes that these proceedings were in all respects regular; that there was no fraud in the procurement of the divorce, and that the final decree was rendered in accordance with the laws of France.
Under the law of France, its courts retained jurisdiction to make such modifications in the custody and maintenance provisions affecting the children as circumstances might require
and this reserved power continues despite the removal of the parties from the district where the court sat. Plaintiff was entitled to apply for a modification at any time upon twenty-four hours' notice. Under the French law also, even where custody is granted to a wife, there remains in the father a right of supervision and control over the education and upbringing of the minor children.