90 N.Y.S. 703 | N.Y. App. Div. | 1904
The relator went from this State to South Dakota, and began an action for absolute divorce. While the suit was pending, the husband signed an agreement relative to permanent alimony which provided that the wife might retain the custody and control of their
If the foreign divorce was invalid, and we do not think it essential to pass upon that question, still the relator as an inhabitant of this State, living in a state of- separation, was entitled to the writ, and might be awarded the custody of the child thereunder. (Dom. Rel. Law [Laws of 1896, chap. 272], § 40.) Mother and father are now equal in their rights of guardianship over their child (Id. § 51, as amd. by Laws of 1899, chap. 159), and, therefore, the mother is not confronted, as heretofore, with the common-law preference for the father. It cannot justly be said that the relator voluntarily left her husband, and without cause refuses to live with him. For it is established, in part out of his own mouth, that he had asked her a number of times to quit their home, to seek the divorce of some western State as the remedy for an unhappy marriage. He testifies that he spoke to her on the subject in November, 1901, but “ she refused.” Not only did he repeatedly suggest this step, but he countenanced her going in 1902, and facilitated her suit both by supporting her regularly meantime and by his personal appearance in that action. Even if she was unsuccessful, it was in spite of his suggestion and his active concert. After such banishment, a woman returning to her husband’s house would leave her self-respect behind. The husband says that he asked her to return after he heard that the divorce which he wanted and which she sought was invalid. He told her to come back “ if she wished,” and she replied that she did not wish; that “ she could not understand why I wanted to get rid of her one time and want her back the next.” Under the circumstances it cannot be said that this wife appears wayward or willful or capricious in living in a state of separation, and that she should not be listened to by the court.
The chief concern of the equity court was the welfare of the
The order awarding the custody should be affirmed, with costs.
All concurred.
Order affirmed, with ten dollars costs and disbursements.