
    Williams v. Williams.
    
      (Supreme Court, General Term, First Department.
    
    July 9, 1889.)
    1. Divorce—Separation—Abandonment.
    Where the testimony in an action by a wife for divorce a mensa et tlioro shows that the parties had been living apart for two years prior to the action, solely for the reason that defendant had absolutely refused to permit plaintiff to live with him except on condition that she would never see nor have any communication whatsover with her mother, defendant cannot set up her failure to live with him as a defense to the charge of abandonment.
    2. Same—What Constitutes Abandonment.
    Defendant’s abandonment commenced at the time of his positive refusal to let plaintiff live with him except on the condition named; and evidence that, after such refusal, he left the state, took uf> his residence in another state, and there procured a divorce a vinculo, supports a judgment for plaintiff.
    8. Same—Alimony.
    Where defendant’s income, depending upon the practice of his profession as a physician, is from $3,000 to 83,500 per year, and plaintiff has an income of 81,000, an award of alimony of 81,000 per year, besides 8500 per year for a child, is too large, and should be reduced to $500 per year, in addition to the allowance for the child.
    
      4. Same—Counsel Fees—Final Judgment.
    Under Code Civil Proc. N. Y. § 1769, the allowance of counsel fees to the wife must be made on special motion, and not by the final judgment, which is only authorized to make provision for “costs. ”
    Appeal from special term, New York county.
    Action for divorce a mensa, et thora on the ground of abandonment, brought by Mary Williams against Cornelius Williams. Defendant is a physician, residing, at the commencement of this action, in the city of St. Paul, Minn., and engaged in the practice of his profession there. From a judgment of separation and awarding alimony, costs, and counsel fee defendant appeals.
    Argued before Van Brunt, P. J., and Daniels and Barrett, JJ.
    
      
      Tracy, MacFarland, Boardman <6 Platt, (Frank H. Platt, of counsel,) for appellant. Elliott & 8. Sidney Smith, (Austen G. Fox and S. Sidney Smith, of counsel,) for respondent.
   Barrett, J.

The findings of fact of the learned judge at special term amply support the conclusions of law, and these findings of fact are in turn supported by the evidence. The testimony shows a plain case of abandonment at or about the time charged in the complaint. Prior to that time the parties had been living apart for upwards of two years. The defendant claims that during this period the plaintiff was in the wrong, and liable at any moment to be justly proceeded against for abandonment. This claim is without foundation. The plaintiff was always willing to live with the defendant if he would permit her to do so. He would not, however, permit her to live with him, except upon a most unreasonable and tyrannical condition, namely, that she should never see her mother again. It was not that her mother should live elsewhere, nor that the intercourse should be restricted, but that the door between mother and child should be shut, absolutely and forever. The plaintiff offered to go with the defendant if he would only let her see her mother. But the refusal was firm and peremptory: “When you leave this house, venare not to see your mother; * * * you shall not go where she is; you will have no communication with her; you shall not write to her,—have no-communication with her whatever. If you want to see your mother, you cannot go with me.” A few days later this was repeated. The plaintiff’s testimony is clear upon this point: “He came to me, and said: 1 What is your answer?’ I said: ‘It is just the same as 1 gave you Sunday night. If you will only let me see my mother, I will go with you.’ Then he said: ‘ You know what I told you Sunday night. If you want to see your mother, you can’t go with me.’” The defendant denies the imposition of this condition as-thus testified to; but the court, at special term, credited the plaintiff, and upon good grounds. The defendant admits that the mother question was a subject of debate between them, but seeks to give a somewhat different color to the conversation. This is his version: “Then I got up, and said: ‘ You must understand that you have got to give up your mother, and you will have to-choose between your mother and me.’ She said: ‘ You are asking too much when you ask me to give up my mother. I never can give up my mother.’ I said: ‘I don’t ask you to give up your mother wholly and entirely, but I simply require that your mother slxdl not come back to our house, and you shall not go away with your mother, and remain with her.’” Here there was no condition; and, although the language italicized was harsh and pretty close-in meaning to the plaintiff’s version, yet what follows would not have been unreasonable. But the contemporaneous letters tend to corroborate the plaintiff with regard to this disputed condition. The defendant demanded her return, and she answered: “If it is to be under the same conditions as you offered me before, you know my answer.” In his reply he reiterates his command to return, but observes: “I am more averse to your mother than ever, since I have learned of some of the things which she has said about me, and I cannot stoop to make conditions as to her. ” He does not here deny that he-had made such conditions before, as intimated in his wife’s letter. All that she desired was that he should withdraw them, and this he never did. She did not wish to impose her mother upon him. She told him that all she asked was to see her mother occasionally; that she would never mention her mother’s name; and that her mother should never cross his path. But he was obdurate, and this obduracy pervaded the entire period of separation. It is clear that, upon these facts, the defendant had no cause of action against the plaintiff for abandonment; and that he could not successfully interpose her refusal to live with him, because of this unreasonable and inhuman condition, as an answer to her subsequent entreaty to be permitted to return to him. Whether it would be different if such a cause of action for abandonment had actually accrued it is not, therefore, necessary to consider.

The plaintiff, at the time she begged done nothing which justified the defendant’s refusal, and his abandonment then commenced. That the facts at this point establish a complete abandonment cannot be doubted. It was deliberate and definite. He not only refused to take the plaintiff back, or to listen to her pathetic appeals, but he left Hew York, took up his residence in another state, and there proceeded to obtain a divorce a vinculo. That settled the status of the parties, and the present cause of action at once accrued.

The other questions require but little consideration. The appellant concedes that the court is bound by the principle of the O’Dea Case, 101 N. Y. 23, 4 N. E. Rep. 110, and consequently the judgment of the Minnesota court, awarding tlie defendant a divorce a vinculo, was properly excluded.

The alimony awarded was somewhat larger than the circumstances warranted. The defendant earns from $3,000 to $3,500 per annum, and the plaintiff’s income is about $1,000 per annum. The court at special term allowed her $1,500, namely, $500 for the child, and $1,000 for herself. That gives her a total income of $2,500, and leaves the defendant from $1,500 to $2,000. To earn this professional income the defendant must have an office and certain professional equipments. All this should be considered, for upon the defendant’s professional success the plaintiff is wholly dependent for security in obtaining punctual and steady compliance with the decree. He should certainly not be crippled in, his efforts to provide the necessary means. Upon the whole, we think the provision for the child should stand, but the sum awarded to the plaintiff should be reduced to $500 per annum.

The counsel fee was unauthorized. The statute (Code Civil Proe. § 1769) only makes provision for costs; that is, in the final judgment. All sums necessary to enable the wife to carry on the suit must be awarded on special motion. Beadleston v. Beadleston, 103 N. Y. 402, 8 N. E. Rep. 735; Percival v. Percival, 14 N. Y. St. Rep. 255.

The judgment appealed from should be modified in the particulars specified in this opinion, and as thus modified, affirmed, without costs of this appeal.

Daniels, J., concurs in the result.

Van Brunt, P. J.

While concurring with Mr. Justice Barrett in the conclusion at which he has arrived-in this case, I do not concur in the assumption that the decree of divorce obtaineCby the defendant in Minnesota could not, under any circumstances, be admitted in evidence as a bar to this action. The defendant was a Iona fide resident of Minnesota, and as such he filed his bill for a divorce. It is true that the plaintiff was not served with process within the state of Minnesota, but was served outside of the state, and upon such service a decree was rendered. It is also true that under the cases of People v. Baker, 76 N. Y. 78; O'Dea v. O'Dea, 101 N. Y. 23, 4 N. E. Rep. 110; and Cross v. Cross, 108 N. Y. 628, 15 N. E. Rep. 333,—such decree was inoperative and void; it having been granted for a cause not recognized by the laws of this state, the defendant in such action being a resident of this state. But this rule, I think, has been entirely overthrown by the decision of the supremecourt of the United States in the case of Maynard v. Hill, 125 U. S. 190, 8 Sup. Ct. Rep. 723. In that case it appeared that, in 1828, David S. Maynard and Lydia A. Maynard intermarried in the state of Vermont, and lived there together as husband and wife until 1850, when they removed to Ohio. In 1850 the husband left his family in Ohio, and started overland for California, under a promise to his wife that he would either return or send for her within two years, and that in the mean time he would send her the means of support. He left her without such means, and never afterwards contributed to her support or that of her children. On the 16th of September, 1851, he took up his residence in the territory of Oregon, and continued ever afterwards to reside there, and on the 22d of December, 1852, there was passed by the legislative assembly of Oregon the following act: “An act to provide for the dissolution of the bonds of matrimony heretofore existing between D. S. Maynard and Lydia A. Maynard, his wife. Section 1. Be it enacted by the legislative assembly of the territory of Oregon that the bonds of matrimony heretofore existing between David S. Maynard and Lydia A. Maynard be, and the same hereby are, dissolved.” And the question presented to the court was whetherthat act, dissolving the marriage between David S. Maynard and Lydia A. Maynard, the latter not having been a resident of Oregon at the time of the passage of the act, was valid in Ohio, where her husband had left her. The court, after discussing the question, and answering it in the affirmative, and holding that the power over divorces remains in the legislature, in the absence of constitutional prohibition, say: “We are justified in holding—more, we are compelled to hold—that the granting of divorces was a rightful subject of legislation, according to the prevailing judicial opinion of the country and the understanding of the profession at the time the organic act of Oregon was passed by congress, when either of the parties divorced was at the time a resident within the territorial jurisdiction of the legislature. If within the competency of the legislative assembly of the territory, we cannot inquire into its motives in passing the act granting the divorce; its will was a sufficient reason for its action. One of the parties (the husband) was a resident within the territory, and as he acted soon afterwards, upon the dissolution, and married again, we may conclude that the act was passed upon his petition. If the assembly possessed the power to grant a divorce in any case, its jurisdiction to legislate his status, he being a resident of the territory, is undoubted, unless the marriage contract was a contract within the prohibition of the federal constitution against its impairment by legislation, or within the ordinance of 1787, the privileges of which were secured to the inhabitants of Oregon by their organic act.” Both of these questions the court answered in the negative, and held that this legislative divorce obtained in Oregon, without assigning any cause, one of the parties being a resident, dissolved the marriage in question.

This case establishes the proposition, therefore, that if in the case at bar it had been established that by an act of the legislature of Minnesota the marriage between the plaintiff and the defendant had been dissolved, the defendant being a resident of that state, such action upon the part of the legislature would have been a bar to the present action, unless it was shown that there was some prohibition restraining the act of the legislature. How, if the legislature can itself dissolve a marriage without assigning any cause, where ■either of the parties is resident within its limits, is it not equally true that they may establish a system by which these contracts are to be dissolved for certain causes, and determine how and to whose satisfaction the existence of these causes are to be established? And this is all they do in forming a system by which judicial divorces are to be granted. The legislature clothes the judiciary with power, which it has the right to do, designates certain circumstances under which that power shall be exercised, and has thrown upon the judiciary the duty of- entertaining such applications, under the restrictions which the legislature has imposed. It is a delegation of authority from the legislature to the judiciary, authorizing,the judiciary to perform an act which in the absence of constitutional prohibition the legislature itself would have the right to do. The constitution of the United States (section 1, art. 4) provides that full faith shall be given in each state to the public acts, records, and judicial proceedings of every other state. The interpretation of the United States supreme court as to the powers of the legislature, under such circumstances, is necessarily authoritative. It may be stated as a necessary result of the foregoing reasoning that it was error to exclude the decree in the case at bar. But the difficulty with the defendant’s case in that respect is that he lias not proved the law of Minnesota. He seems to have offered the decree in a perfunctory manner, knowing that the decision of the court of last resort in this state had held such a decree to be void, and therefore he thought it was not for much use, and does not seem to have taken any pains to make it relevant. But if he had proven the laws of Minnesota, and shown that this decree was entered in accordance with those laws, I cannot see how, under the decision which has been quoted, it could have been excluded, and why it would not have been a bar to the present action. But, there being no evidence of the laws of Minnesota, the court cannot take judicial cognizance of those laws. Whether this decree was entered in pursuance of any such law we know not, and we cannot assume anything upon that point. I therefore concur in the result arrived at by Mr. Justice Barrett.  