Hechemy v. Hechemy

A. Franklin Mahoney, J. The defendant, by notice of motion, seeks an order modifying a judgment of ¡divorce so as to grant custody of the three infant issue to her, custody having been given to the plaintiff husband in the judgment sought to be modified. The motion is denied. The court does not have jurisdiction of the parties. Sections 236 .and 240 of the Domestic Delations Law provide that judgments of divorce, generally by terms of ¡section 236, and, specifically by terms ¡of section 240, that: ! ‘ Upon the application of either the husband or the wife, or of any other person or party having the care, custody and' control of such child pursuant to such judgment or order, after .such notice to the other parity or parties or persons having such care, custody and control and given in .such manner as the court shall direct, the court may ¡annul or modify ¡any such direction, whether made by order or final judgment ”. (Domestic Delations Law, § 240.) An application to modify a matrimonial decree with regard to custody of a child should be brought on by an order to show cause, and not by ordinary notice of motion, and the failure to proceed by order to show cause is jurisdictionally fatal (Stuart v. Stuart, 195 Misc. 928; see, also, 2 Foster-Freed, Law and the Family, § 29:36, p. 563). Since the court is without jurisdiction, the provisions of CPLB 103 cannot be employed to choose the form in which the motion was initiated.