Morris v. Morris

| N.Y. App. Div. | Jun 19, 1940

Per Curiam.

The evidence shows that the difficulty between the parties arose out of incompatibility of temper and consisted chiefly of quarrels, which, in our opinion, did not justify a termination of the legal rights and duties of husband and wife. There was no credible evidence of cruel and inhuman treatment by defendant. At most, there were arguments consisting of angry words. Certainly, there was no basis for a finding that defendant was guilty of cruel and inhuman treatment of plaintiff; that he wrongfully refused to cohabit with her and that he intended to abandon her or failed to provide for her support. The differences between the parties are not so great as to warrant the conclusion that they may not be reconciled. The evidence was that defendant is a man of good habits and has amply provided for plaintiff within his means. It also shows that plaintiff, in the main, was a-dutiful wife, who was devoted to the rearing of defendant’s two children during the early years of the marriage.

The law is now well settled that incompatibility of temper is no ground for a legal separation in this State. (Smith v. Smith, 273 N.Y. 380" court="NY" date_filed="1937-03-23" href="https://app.midpage.ai/document/smith-v-smith-3612522?utm_source=webapp" opinion_id="3612522">273 N. Y. 380, 384; Pearson v. Pearson, 230 id. 141, 146, 148; Greene v. Greene, 244 A.D. 219" court="N.Y. App. Div." date_filed="1935-04-12" href="https://app.midpage.ai/document/greene-v-greene-5339414?utm_source=webapp" opinion_id="5339414">244 App. Div. 219.) The record here affirmatively establishes that plaintiff apprehended no danger of bodily harm at the hands of defendant and that until the day she voluntarily left the home provided for her by defendant, there was nothing in their relationship different from that which one could anticipate finding in a household where there are two children who are not the offspring of the wife.

We think that upon .all the evidence the court erred in granting a decree to plaintiff. The judgment, in so far as it grants a decree of separation to the plaintiff, should be reversed and the complaint dismissed, and in all other respects the judgment should be affirmed, without costs.

Present — Martin, P. J., Glennon, Untermyer, Cohn and Callahan, JJ.

Judgment, in so far as it grants a decree of separation to the plaintiff, unanimously reversed and the complaint dismissed. In all other respects, judgment affirmed, without costs. Settle order on notice, reversing findings inconsistent with this determination, and containing such new findings of fact proved upon the trial as are necessary to sustain the judgment hereby awarded.