
    Mabel W. Burritt, Plaintiff v. Jacob L. Burritt, Defendant.
    (Supreme Court, Erie Special Term,
    February, 1907.)
    Divorce — Custody and support of children: Power of court — Exercise of discretion — Provision for future modification of judgment; Matters by which court will be controlled.
    Where the referee, in an action by a wife for an absolute divorce, reported in favor of granting the divorce but awarding the custody of the children to the guilty defendant; and it does not appear that the wishes of the children, who are boys from twelve to fifteen years of age, had been consulted, and the court is noisatisfied that the evidence justified the conclusion of the referee that the plaintiff's conduct and character establish her unfitness for the training of her children, the report will be confirmed and a judgment of divorce will be granted but with leave to the plaintiff to apply, upon proper proof, for a modification of the judgment as far as relates to the custody of the children and the allowance for their support.
    Motion by the defendant to confirm referee’s report, in action for a divorce, in favor of plaintiff, but awarding custody of children to defendant.
    W. W. Waring, for motion.
    John J. Kuhn, V. Y. Goldberg and M. M. Wyvell, opposed.
   Pound, J.

dSTo attempt was made by defendant on the trial to dispute or disprove his adultery. The contest was wholly over the custody of the children and the allowance for the support of plaintiff and such children. The referee has found in favor of the plaintiff on the question of defendant’s adultery, but he has awarded the custody of the three children of the parties, who are boys, aged respectively fifteen, thirteen and twelve years, to the defendant, on the ground that plaintiff’s unfitness for the training of her children is established by evidence of her conduct and character produced upon the trial. Plaintiff is denied the right to the companionship of her children at any time. It is unusual to award the custody of the children to the guilty defendant, and the grounds upon which such an award is made should be critically examined. To compel these children to live with their father, their own wishes and welfare should be consulted; and it must clearly appear that the character of their mother is such that it would not be safe to entrust to her the education- and care of said children, and that the character of the guilty father is such that it would be safer and more prudent to award their custody to him. Osterhoudt v. Osterhoudt, 48 App. Div. 74; People ex rel. Winston v. Winston, 65 id. 231. This case is devoid of evidence that plaintiff ever failed to act toward her children as a devoted mother. The children were not examined on the trial, and it does not appear what their wishes in the matter are.

The referee finds that plaintiff had in her possession certain compromising letters purporting to be addressed to her, the retention of which he construes as evidence of adulterous disposition or conduct on her part toward some unknown person at some time not specified. She denies that she ever received such letters and disclaims all knowledge of them. He also finds that one of the children once called his mother a damn fool and was unrebulced by her, and that on two occasions she was guilty of coarse, though innocent, speech.

While plaintiff may not, in all respects, be an ideal mother, it does not follow that the happiness and welfare of these boys would be promoted by taking them away from her entirely.

The plaintiff is entitled to judgment of divorce, and as this court has power only to confirm or to refuse to confirm the referee’s report, the report is confirmed and judgment ordered in accordance therewith, but with leave to the plaintiff to apply, upon proof of the wishes of the children and additional proof as to their future interests, for a modification of the judgment herein as far as relates to the custody of said children and allowance for their support.

Meanwhile, let the execution of judgment be- stayed, so far as it awards custody of the children to the defendant.

Ordered accordingly.  