12 A.D. 398 | N.Y. App. Div. | 1896
The relator in this proceeding is the wife of the respondent, Louis Sternberger. Since November, 1895, they have lived apart, the wife having then separated from her husband by withdrawing from his home and taking up her abode at the house of her father. There are two children of the marriage of the relator and her husband ; one a girl, now in her eighth, and the other a boy, now in his seventh year. The relator, on leaving her husband’s house, took both children with her. On the 18th of November, 1895, the respondent, Louis Sternberger, took' his son into his own custody and away from the mother, who thereupon began this proceeding, in which, although in the beginning directly relating to the son only, it is agreed that the court shall determine to which of the parents the custody of both children shall be committed, they in the meantime, and by arrangement of the parties, remaining with their mother. The proceeding was initiated by the relator obtaining a writ of habeas corpus under the provisions of 2 Revised Statutes, 148 (§§ 1, 2 and 3), by which it is enacted that “ when any husband and wife shall live in a state of separation, without being divorced, and shall have any minor child of the marriage, the wife (by the Domestic Relations Law’ of 1896 [Chap. 272, § 40], passed after'this proceeding was begun, the provision is extended to the husband also), if she be an inhabitant of this State, may apply to the Supreme
This law has stood upon the statute book for nearly seventy years, and its provisions have been invoked quite frequently by wives living apart from their husbands and seeking judicial sanction for the custody and control of their infant children. In none of the reported' cases has any question ever been raised requiring an interpretation of the words living “ in a state of separation,” as those words are used, in this statute. But now for . the first time it is earnestly argued that the remedy afforded-by this enactment is not open to a wife unless her separation from her husband without a divorce is one resulting from some arrangement or treaty placing the parties in the situation of assenting to a “ state ” recognized by law, and technically defined and established. -No authority is cited to support that novel and strained construction. The statute deals with a condition and with a condition alone. It takes the parties as it finds them — husband and wife living separated, without a judicial decree either of absolute or what is sometimes called limited •divorce. Its evident original purpose was to give a wife so situated a remedy which theretofore she did not have. It does not confer an absolute right, but a mere remedy by means of which she can seek the aid of the court in the exercise of its purely discretionary power to confide to her, for her child’s welfare, the temporary charge and custody of that child, in curtailment of what was then regarded to be, and doubtless was, the common-law right of the father to the possession of the persons of his minor children. The learned and discriminating judge who wrote for the court in the case of The People v. Brooks (35 Barb. 89) has well said “ this statute does not declare on what grounds the court shall proceed, but confides .the whole matter to its discretion, and hence the occasion, cause and circumstances of the separation and -the relative-merits and demerits of the parties may he taken into account.” If the separation must result from agreement what need can there he of investigating the causes of the
It is.further urged that in the disclosure of merits connected with the wife separating herself from her husband, a case must be made out sufficiently strong to authorize a decree for some one of the causes mentioned in the statute relating to divorces. The learned judge in the court below adopted that view and said in his opinion: “If the facts in the case would not warrant the court in granting her a separation, I do not think that they are sufficient to warrant her to take her husband’s children from his house.” This limitation upon the operation of the 'statute reads into it a condition, not only foreign to its purpose, but entirely at variance with that purpose. It would liere compel the petitioning wife to present to the
We are, therefore, of the opinion that it is not necessary that this petitioner must go to the extent of showing herself entitled to a divorce a mensa et thoro, before she may receive the benefit of the discretionary power of the court under the terms of the statute, but at the same time that power should not be exercised in favor of the wife, unless she shows something real and substantial to justify'her conduct in leaving her husband. This view is directly associated with the fitness of the mother to have the control and charge of the infant children. As was said in Mercein v. The People (25 Wend. 74), in settling the question of custody, the causes which have led to the separation affect personal character “ and touch the qualifications of the parties for the proper exercise of the parental office.” If the mother has wantonly and without excuse or reasonable cause deserted her husband and broken up his home, it would be a grievous injustice to reward her for the- violation of her duty by giving her the possession and control of the children. While the prime consideration is the benefit of the children, no court could consider that their welfare would be conserved by intrusting them to a woman who had so little, either of good feeling or judgment, or conscience, as that. We think that the remedy sought in proceedings of this character may be furnished to a wife under the statute, when it appears to the court that she is living separate and apart from her husband for some good and substantial reason vdiich justifies her morally in the course she has pursued, although that reason may not be sufficient as a basis for a decree of divorce, .always provided the wife is a fit and proper person, having the means and ability properly to support and educate the children, and that the court is satisfied that it will be for the best interest and welfare of such children that they shall remain temporarily with their mother.
These general considerations having been stated, they must be applied to the facts of this case as they are developed upon the record before us.
The relator’s petition was filed in December, 1895. It sets forth her marriage with Louis Sternberger; that they were living, at the time the writ was filed, ill a state of separation without being divorced, and that the relator was an inhabitant of the State; that
When the matter came on to be. heard, the court made an order directing! a reference, to take proof, upon two questions, namely: First. Is the mother a proper person . to have the care, and custody of the children ? Second. Is the father a proper person to have the care and custody of the children? The referee was also directed to report the evidence taken by him on those questions, together, with his 'opinion as to what disposition of the care and custody of the two Children would best conserve their interests.
After a protracted hearing the referee made his'report, in which he found, that the mother was a proper person to have the care and custody Of the children; that the father was an improper person to have sudh cáre and custody, and he was of the opinion that it was to the best interest and welfare of such children that they should be left in the custody of their mother. Upon the coming in of that report, an application was made to the court to confirm the findings of the referee, which motion was denied and an. order was made committing the custody of the children to the respondent, and from that order this appeal is taken.
We agree with the finding of the referee that the mother is a fit and proper person to have the care and custody of the children. It is shown that she is a woman of education, refinement, strong maternal; feeling, deeply interested in the welfare of her children,
It would be neither instructive nor advantageous in any way to refer with minuteness to the testimony upon which we reach this determination, a course which might gratify the pruriency of the curious, but would be of no benefit to the parties interested. It is
From the date of the marriage of these parties, in April, 1888, until the autumn of 1890, they lived with and formed part of the family and household of the relator’s father. Both of their children were born under that father’s roof; the strongest affection and love existed between the relator and her father, and the evidence discloses that the respondent, Louis Sternberger, entertained for his father the same sentiment of devoted filial attachment. The relator and her husband apjiear to have lived harmoniously together until some time in the year 1889 or 1890, when unkind feelings arose in consequence of circumstances not necessary to mention. The principal and most' efficient cause' of the ultimate estrangement of the wife from her husband was undoubtedly the financial differences between the respondent and the relator’s father, differences which may have arisen. originally from honest misunderstanding, but" which resulted in intense bitterness of feeling and profound enmity between the father-in-law and the son-in-law. Out of that enmity grew a series of acts, -insulting, irritating, unjust and harsh beyond endurance, on the part of the respondent to his wife, who was made to bear the brunt of. his intense hostility to her father, manifested by passionate outbreaks of ill-temper, by disparaging and contemptuous and malevolent remarks concerning her father and her mother, carried as far as an expression of deep regret that he had not the courage to kill that father; by scenes óf violence and misconduct, such as a self-respecting and sensitive woman could only regard with disgust and aversion. These exhibitions on the part of the respondent were entirely at variance with his ordinary and normal character and deportment as testified to by many witnesses. They evidently were the outgrowth of his financial troubles and misfortunes, acting upon a highly sensitive and excitable temperament — misfortunes which he attributed largely to his wife’s father, and with which in his unreasonableness he associated her, upon the assumption that her sympathies were enlisted upon the side of her father and in hostility to her husband and his interest. That this was the origin of his active ill-treatment of his wife we think the testimony shows; that ill-treatment did not go to the extent of actual brutality, or physical injury, but it was displayed in instances of a
On the whole case, we think the interests Of the children would be best conserved by permitting them to remain for the present with their mother. Only one really serious thing has been brought forward as impeaching her fitness, and it relates to occurrences antedating by some months the birth of the son, but they seem to be explained and no further-allusion to them is required. We have omitted to refer, for reasons already indicated, - to ■ any of the- testimony connected with the relator’s interviews with either of her counsel, and to many of the various matters detailed in the evidence and upon which counsel llave dwelt minutely in their briefs. They have not failed, however, to receive very careful consideration.
The order appealed from must be reversed and the motion for a final order confirming the report of the referee granted, awarding the custody of the children, until the further order of 'the court, to the relator,.upon the conditions recommended by the referee in his report, arid with costs and disbursements of the proceeding to be taxed.
Yan Brunt, P. J., Babrett, Williams and O’Brien, JJ., concurred.
Order reversed, and motion for final order confirming referee’s report granted, awarding the custody of the children until the further order of the court to the relator, upon the conditions recommended !by the referee in his report, and with costs and disbursements of the proceeding to be taxed.