
    Sigmont Simon, Plaintiff, v. Jennie Simon, Defendant.
    
    (New York Superior Court — Equity Term,
    December, 1895.)
    1. Divorce—Separation—Abandonment.
    The mere fact that a wife leaves her husband’s house and refuses to return unless he consents to treat her with proper respect before the children and servants and to stop his relations from abusing her, is not sufficient to constitute an abandonment.
    
      2. Same.
    Ill-treatment of a wife by her husband by refusing to speak to her, humiliating her before servants and insisting upon having his relatives in the house when he knows they are offensive to her, will justify her in temporarily leaving him, but is insufficient to authorize a decree of separation.
    Action for a separation on the ground of abandonment.
    
      Howe & Hummel (A. H Hummel and B. Steinhardt, of counsel), for plaintiff.
    
      Hays & Greenbaum (Samuel Greenbaum and Charles H. Truax, of counsel), for defendant.
    
      
       Received too late for insertion in proper place.— [Reporter.
    
   Gildersleeve, J.

The parties to this action are husband and wife. The husband brings the action for the purpose' of securing a separation, upon the ground of abandonment. The wife denies that she ever deserted her husband, alleges that he deserted her, and demands judgment that 'the complaint be dismissed, and that a separation from bed and board forever be decreed to her. They have now lived apart for about one year and eight months. During this time the children of the marriage, of whom there are two, i. e.,- a girl of about ten years and a boy of about seven years, have been in the custody of the mother, with the privilege to the father of visiting them from time to time, and for a portion of this period he has had them with him certain hours during the day. The parties have been married for upwards of ten years. The testimony certainly discloses no desire on the part of the wife to again consort with her husband. The husband asserts, somewhat feebly we think, and with an absence of spirit born of devotion to the wife, that she is still welcome to his home, and that it is his .wish that their marital relations should be resumed. We think, however, it may be truthfully said that •one is as anxiotis for a separation as the other.- It is manifest from the record that each has shown a desire, evinced by acts and by the nature of the correspondence between them, to keep within the rules of law favorable to his or her side. The correspondence between the parties and the manner in which it was conducted seem to indicate a disposition on the part of each to find or to establish in the acts, and statements of the •other some ground that would warrant a separation.

It is clearly a .case of an eruption in a home that for many years was welbhegtilated and peaceful. The testimony1 discloses no acts of violence on the part of either, and nothing occurred between the parties that, may justly be characterized as ■ cruel and outrageous. The great trouble with the case arises from the- fact that the conduct of the parties, while not beyond reproach, has been- so decent and amiable that the facts seem too trivial and insignificant for judicial consideration. By degrees, however, their relations became strained, and they rib longer lived happily together, and the acts followed which we are now called upon to characterize and construe. It is really a contest for the custody of the children, .and each parent 'seeks a preference over the other in their cafe and management. Indeed, the learned counsel for the-wife state in their brief that the only question in the case that concerns the wife is the custody of the children.

It is not our duty, nor is it our privilege, "to, consult the wishes of the parties to this disagreeable controversy, nor must we be influenced in reaching a conclusion by the consequences thereof.

In approaching the consideration of this case we must bear in mind the policy of the" law, as well as the specific- rules of law applicable..

The family is the origin of all society and of all government. The happy family, well organized. and successfully discharging its functions by strengthening the parents for the proper discharge of life’s duties, while it fits the children to succeed to those duties, is the highest type of human goodness and the surest source of human happiness. The whole framework of government and laws has been said to exist only to protect and support the family, so that it may develop and perfect.,the character..of its members. The ‘dearest interests of the whole community require that it should be made as far as possible inviolable. (People v. Olmstead, 27 Barb. 9.)

It has been well said by Bishop, in writing upon the claims for a severance of the matrimonial contract upon the ground of incompatability of temperament (see 1 Mar. & Div. § 743) that “ the causes of complaint must be grave and weighty. Mere turbulence of temper, petulance of manner, infirmity of body or mind are not numbered amongst those causes. When they occur their effects are to be subdued by management, if possible, or submitted to with patience, for the engagement ‘ was to take for better, for worse, and, painful as the performance of this duty may be, painful as it certainly is in many instances which exhibit a great deal of the misery that clouds human life, it must be attempted to be sweetened by the consciousness of its being a duty, and a duty of the very first class and importance.”

Again, it is said in McBride v. McBride, 31 N. Y. St. Repr. 631, that “ necessity to endure is one of the evils attending the marriage state, and parties should not for such reasons be put asunder by judicial decree.”

A decree of separation cannot be awarded unless a legal ground therefor is established by a fair preponderance of credible testimony. • The first question for determination, under the issues' raised by the pleadings, is this: Did the defendant abandon the plaintiff, as alleged in the complaint, without justifiable cause % If the testimony calls for an‘answer of this question in the affirmative, a separation must be granted.

Professor Dwight, in Uhlmann v. Uhlmann, 17 Abb. N. C. 236; defined .an abandonment as follows: - “ It. seems to- me that to constitute an abandonment, under the statute, two elements are necessary, one is a final departure .with the intention not to return. * * * The next essential fact, I think, is that there should be no" sufficient reason-for leaving.” In. Sergent v. Sergent, 33 N. J. Eq. 204, it was' held that three things áre necessary to the act of desertion: “'First, cessation of cohabitation; second, an intent in the mind of the defend- . ant to desert; third, that there is not consent on the part of the complainant.” It is well established .that there are three grounds Upon which a justifiable separation' may. be based: First, by consent; second, by such .conduct on the part of the other as is, as -against such' other, a cause for divorce; third, by such conduct on the part of the other as is cruel and outrageous, though not amounting to a cause for divorce. 5 Am. & Eng. Ency. of Law, 805, The first two grounds must' be dismissed, in the'case at bar, for the reason that the evidence, will not support either. ' Can it be said that the testimony . . before Us'brings the case within the third ground ?

Ill-treatment or misconduct may be of such a character as to furnish justification for desertion, and.stillbe insufficient in x ■ law to support a decree of separation. See Gillinwaters v. Gillinwaters 28 Mo. 60; Pridge v. Pridge, 40 Mass. 253. Does .the evidence disclose anything more than a temporary ; separation of the parties because of a disagreement ? The -defendant did leave the -home long occupied by the parties ás husband and wife, taking-with her tlieir two children. .Was' her leaving willful' and -wrongful .and with the. intention not ' to return? Good and substantial reasons are required to <he given by'the deserting party as a justification for an-abandon-' ment. > Are the-reasons that defendant-gives for leaving herbóme such as may be regarded in law_ as sufficient tó justify her action ? This is the vital point in the case,

In addition to the foregoing, as embodying the 'principles ' of law that-we consider applicable here,.we may state that we • take the definition of abandonment as given by the Court of. ' Appeals in Williams v. Williams, 130 N. Y. 197, to wit: “ That term, as used in the law of divorce, contemplates a'voluntary separation of one party from the other, without justification, with the intention of not returning.”

We are able to gather from the testimony a very clear conception of what the defendant’s intention was at the time of leaving. Her wishes and intention, as subsequently expressed in her letter of May 4, 1894, to her husband, fully coincide with the conclusions that must be reached from the testimony as to what occurred and as to whát she said. The language of the letter, pertinent to the question we are now considering, is as follows: “ If you really wish to live with me, you will have to recognize that a-wife has some rights which a husband' is bound to respect.. I shall certainly insist on the entire management of the servants, and if there are any complaints to be made or orders given, it should be through me. I shall expect to be treated with proper respect before the children and servants, and I will "not have your brother and sister come to the house to insult me again. If they wish to visit you, they can do so, but I must know of it so that I may be absent. If you are willing to concede to these reasonable demands you can call for the children and me, and we can stop at some hotel here in New York, or the vicinity, as I have closed up the house for the summer.” •

Mr. Myers had an interview with the defendant with the • object of bringing about a reconciliation. The defendant testified as follows : “I‘told Mr. Myers I had stood a great deal with Mr. Simon and had" gone through a great deal, and that only under certain conditions would I live with him.” This was. on cross-examination. On her direct examination she made the following statement: “ I told him (Mr. Myers) I had stood a great deal from .Mr. Simon, and things had gone so far now . that he would have either to apologize — well, I told him, I believe, that night, I had made up my-mind that Mr. Simon would have to give up the management of the house, and that I must not be insulted before the children and servants, and that he would have to keep his relatives away from the house while I was there.”

These conditions seem to he substantially the same as those set forth in her letter of May fourth. She again testifies that the cook said that' if I were going to leave the house she wanted to go'with mé, and again I told him (plaintiff’s.brother) I wanted his folks (plaintiff’s) put out of the house, it would save me the trouble of leaving.”

From the foregoing, when considered in connection with all the other testimony in the case, it is quite as clear as that the parties are now living apart, that when defendant left it was with the intention of returning, if plaintiff complied with the conditions she named. Those conditions consist of acts on the part of the plaintiff, of failures to act, or to assent to her wishes, and are practically all that constitute the grounds upon which the defendant’s justification for deserting her husband rests. We think they call for such conduct on the part of the husband as the wife had' a right to exact. They impose a duty which the husband" should have recognized. The failure to assent to these reasonable requests justified the wife in going to her father’s house.

From a careful consideration of the entire case, it must be held that the evidence discloses nothing more than a temporary separation of the parties because of a disagreement.

The husband takes his wife for better, for worse.” He promises to love, honor and comfort her. It is his duty to treat her with tenderness and affection. When she is assailed he should always come forward as her' champion and protector. He should palliate all her faults and do all' in his power to enable her to carry the burdens of life lightly and cheerfully. When he ignores her presence and does not speak to her for days at a time, as the plaintiff in this case did, he is clearly at fault. The conduct of the. plaintiff during this week in April, which seems to have proved the crucial week in their married life, and at times prior thereto, was such as was calculated to disturb the peace of the home and the comfort. of the wife. Without urgent need or good reason,'he discharged the governess at night, , thereby imposing upon the wife the duty of caring for the children. He humilitated her in the presence of the servants and children, • telling her to “ shut tip; to keep her mouth shut.” He called his relatives about him, knowing that their presence was offensive to his wife, and they were present at the house at the time the wife left the house of her husband and went to her father’s. We think the circumstances were such as justified her in seeking, for the time, the quiet and peace that her father’s home afforded.

We might continue the discussion, but, having reached the conclusion already announced, it becomes unnecessary to do so.

It is sufficient to add that while the conduct of the husband has been such as to warrant the wife in temporarily leaving him, the evidence falls far short of establishing valid grounds for granting to the defendant the affirmative relief she demands.

Both the complaint and the claim .for affirmative relief in the answer should be dismissed, without costs.

We must leave the case here without disposing of the vital issue sought to be litigated in this action, namely, the custody of the children. We are not disposed to shirk or avoid that issue, but consider that it arises only as incidental to a decree of separation, and that in view of the conclusion reached, we are without jurisdiction in the matter. We have given the case a most thorough, honest and earnest consideration, and deeply regret that we are unable so to dispose of it as to settle the differences between this unhappy married couple. We doubt that, even after- the experience of this long and painful litigation, they can agree to live happily together. If they cannot, they should meet, with a view of making reasonable concessions each to the other, and agree upon an equitable and proper separation. As we interpret and construe the evidence, the law cannot, at present, separate them.

Complaint dismissed, without costs. '  