Cook v. Cook

1 Barb. Ch. 639 | New York Court of Chancery | 1846

The Chancellor.

The objection that, the complainant had not revived the suit, in the name of her husband and herself, subsequent to her re-marriage, was an objection of form merely. It could not therefore be insisted on here, under the conditions upon which the appellant has been permitted to have the decree of affirmance opened; even if it was valid as an objection before the vice chancellor. I also think the objection was untenable in reference to the particular application which was made to the vice chancellor. The suit itself was in fact terminated by the final decree; as no costs were awarded, and no right was reserved to the wife to apply for alimony for her own support. The power given to the court, by the statute, to. direct as to the care and custody of the children, either before or after the final decree, from time to time as may be necessary, appears to be a mere collateral power.. And I can see no possible benefit which could, result to any one from a formal revival of the suit, in reference to such a proceeding. All that can be necessary, either in form or substance, is that the husband, whom the complainant has married since the decree for a divorce, should join with her in the petition for the care and custody, of her. children ; so as to render himself liable to the defendant for costs if the application is unsuccessful. And that has been done in this case.

So far as respects the defendant himself, he admits the various acts of adultery, and with different persons, as charged in the bill. And as he does not attempt to deny them at this time, they must be taken to be true for the purposes of this application; although but one act was proved before the master upon the reference. That however would not be sufficient of itself to exclude him, absolutely and forever, from the care and custody of his infant children, if the court, could be satisfied that he had subsequently abandoned his licentious intercourse and become a reformed man. Nor should the agreement as to the custody of the children, made previous, to.the decree, have a controlling influence upon the decision of the court, in such a case. The object of the statute in giving the court the power to direct which of the parties shall have the care and custody of the minor children, where the father has so conducted himself as to justify either an absolute or a limited severance of the marriage tie, was not to gratify the wishes of the parents. If was for the protection of the children, who by tlie misconduct of one parent had necessarily become half orphans. Besides, it would be a dangerous practice to allow parties to agree between themselves as to the custody of their children, in such a case, previous to a divorce. It would lead to collusion', in furnishing causes for divorces,, if bargains of this kind could be made beforehand which the court was bound absolutely to sanction and carry into effect. Fór this reason this court uniformly refuses to sanction an agreement by the wife, in anticipation of a divorce for the alleged misconduct of the husband, to take a stipulated sum in lieu of her claim for alimony; but requires evidence that it is a reasonable allowance, in reference to the amount óf his property, or reserves to her the right to go before a master upon the question of the amount of alimony after the decree has settled her right to a divorce.

From the affidavits annexed to the petition I am satisfied that an agreement iii writing was made between the parties, and substantially in the form stated in the petition of the respondents; and that the §100 was paid to the defendant, by some one, to induce him to consent to the written agreement which was then made. But I am not satisfied that this arrangement was not directly connected with a further understanding, between the parties, that the wife should be permitted to obtain a divorce from the defendant without opposition. No attempt at a defence could have been made by the defendant, for the reference to the master was within six weeks after the L11 was sworn to. And the agreement alluded' to' was probably made before the commencement of that suit, as the petitioner and her witnesses refrain from saying that the suit was pending at the time that agreement was made. But the adultery, proved by the conscientious young woman who declined to name the adulteress for fear of injuring her character, could not have been committed in pursuance of that agreement. For it is sworn, in the Dill, that the defendant committed adultery with that witness in Albany, in February, 1841, which was more, than six months before the final separation of the parties. And the witness saw the adultery committed with the unnamed individual in the winter of 1841, in the city of Albany. The only defence, therefore, which the defendant probably could have made was the alleged misconduct of the complainant, for which he had brought the suit against her present husband. The circumstances under which that agreement was made induce me to lay it entirely out of view in deciding this appeal. And I put my decision upon the question as to what is most for the interest of the child, upon the facts which were before the vice chancellor at the time the order appealed from was made. ■

That the defendant himself had committed numerous acts of adultery with different persons, previous to the decree for divorce, is distinctly charged in the bill, and not denied by him in any form, either in that suit, or upon the application to the vice chancellor, by the mother, to obtain the custody of the child. One of those adulteries was also proved before the master upon the reference. And the affidavits which were served upon him with the notice of the presenting of the petition, show that his libidinous intercourse with abandoned women is still continued. He had a full opportunity to deny the particular facts stated in those affidavits if he could deny them with safety, but has not done so. I must, therefore, for the purposes of this application, consider the allegations as true; notwithstanding the attempt to discredit the witnesses, by the ex parte affidavits of others who do not pretend to disprove the particular facts sworn to on the other side. It is, therefore, evident that the defendant is not a proper person to be entrusted with the care and education of his infant daughter without the superintending care of her mother.

On the other hand, the conduct of the mother previous to the divorce, if the affidavits of the defendant and some of his witnesses are to be credited, was such as to lead to a suspicion that she too was unfaithful to the marriage bed. But no one swears to any thing amounting to certain or even prima facie evidence of guilt in this respect; although her imprudence was such as to induce some of her neighbors to distrust her.. Since the divorce, however, there is nothing to excite a suspicion that she has not conducted herself properly in this respect. The only thing which is charged against her since that time is, that she sometimes gives way to violent ebullitions of passion towards her present husband. But there is nothing to create even a. suspicion that this child had not been kindly treated, and properly supported and cared for, both by its mother and step-father,' for the two years and a half which it was allowed to remain with them subsequent to the decree. On the contrary, it appears that the child, while she remained with them, was kindly treated, comfortably clothed and otherwise provided for, and furnished with the means of instruction suitable to her age. The vice chancellor was therefore right in awarding the custody of this child to the mother, and without reference to the agreement which was made previous to the divorce.

The order appealed from must he affirmed. And the appellant must pay to the respondents,’ Allen and wife, their costs upon this appeal, to be taxed.