66 N.J. Eq. 320 | N.J. | 1904
The opinion of the court was delivered by
The parties' to this suit were married June 24th, 1891, in Montclair, and resided there as husband and wife until September, 1899, during which time they had three children, of whom two are still living. For some time prior to September, 1899, their cohabitation had not been harmonious, and early in
“I told Dr. Power [the husband! that his wife had told me of her last conversation with him; that she wanted me to see him; that his father’ also wanted me to see him, and do what I could to make him willing to continue to live with her; I asked him if he would not be, under any circumstances, willing to do so; told him she had asked me to ask him that; he said he would not; he would not live with her under any circumstances ; he wanted to be rid of her; I asked him what his reasons were —whether he had anything against her; he said that had nothing to do with the case — the fact was that he would not live with her; I tried to make him change his mind; talked t.o him about the disgrace it would bring upon his children ; suggested to him that it would be more expensive than he could stand; I brought every means I could think of to bear upon him to make him state that he would be willing to try to continue to live with his wife; he refused; I asked him if there was not something she could do — any change she could make in the course of her living — that would make him more contented with his home life; stated that she was willing to do anything that he would ask her; he said there wasn’t anything; a few days afterward, on the morning of September 14th, I went into his office shortly after breakfast; I said that his wife had asked me to make another appeal to him ; that she was exceedingly desirous on the children’s account, if on no other, to keep the home together — to patch things up so that they could continue to live together; he cut me very short and said- there was nothing further of that kind to discuss; he wouldn’t discuss it, and furthermore, he thought he had made it clear to mo the last time I liad seen him that what he wanted was a divorce; he expressed a wish that she should get a divorce from him; I said she was unwilling to— wouldn’t do it; he asked me questions about the law in the matter [Mr. Westervelt being a lawyer] and I explained it to him; ‘Well,’ he said, T want that divorce and I don’t want anything else; all my efforts will be directed to that end, and I want you to put it to Mary [Mrs. Power] in that light.’ ”
Immediately after the separation the husband employed an attorney, Mr. Jones, to act for him in the matter. Thereupon Mr. Jones saw Mr. Westervelt and assured him that Dr. Power would not return to the house while his wife was in it; that it was desirable to arrange some modus vivendi; that Dr. Power would require his wife to leave Montclair and sign away all her dower as a condition of receiving any support from him; that Dr. Power wanted to keep his house and his office, which was in it (he being a physician), and Mrs. Power must leave, as he would not live with her; that if she did not leave Montclair and sign an agreement, which should be prepared, she would not get any support from him; but if she did do so, Dr. Power’s father would be willing to look after the matter of income.
This being the attitude of the parties, an agreement was prepared, and on November 15th, 1899, Mrs. Power, on the advice of Mr. Westervelt and having, she says, no other alternative, joined with her husband and a trustee in signing it. This writing declares that Dr. and Mrs. Power agree that they will live, and continue to live, apart; that Mrs. Power shall not remain in Montclair, but outside of that town shall have the right to choose her own separate residence; that she shall execute proper instruments for relinquishing her right of dower; that she shall have the custody of the children until they are seven years of age, after which their custody shall be subject to further arrangement, and that Dr. Power will pay to the trustee $95 a month for the support of Mrs. Power and the children during her natural life, subject to deduction in certain specified events.
Upon the execution of this instrument Mrs. Power, with her children, moved to' the city of New York, where she has since resided, receiving from her husband, or his father, $95 per month and, bj? her own .exertions as a teacher, earning the rest of her necessary expenses.
In November, 1902, she filed a petition in the court of
That on September 14th, 1899, Dr. Power deserted his wife seems to us indubitable. Having declared to her that he would not live with her, having heard her earnest expressions of desire tluit their cohabitation should be continued, he abandoned the matrimonial home and asserted his determination not to return while she was there. Certainly nothing more is wanting to make desertion complete. That he continued to send provisions to the house so that his wife and children might have food, may indicate that he had not given up all concern for their existence, but is not at all inconsistent with the matrimonial offence called desertion. As was said by Lord Penzanse, in Yeatman v. Yeatman, L. R. 1 P. & D. 489: “A wife is entitled to her husband’s society and the protection of his name and home in cohabitation. The permanent denial of these rights may be aggravated by leaving her destitute or mitigated by a liberal provision for her support; but if the cohabitation is put an end to against the consent of the wife and without the intention of renewing it, the matrimonial offence of desertion is in my judgment complete.” To the same effect was the decision in Magrath v. Magrath, 103 Mass. 577, which, in Anonymous, 7 Dick. Ch. Rep. 349, was cited with approval by Chancellor McGill.
The effect upon this desertion produced by the agreement of November 15th, 1899, requires more consideration. It is certain that the agreement did not give to either spouse, as against the other, the right to continue the separation. Notwithstanding it, each was entitled to demand of the other a resumption of marital relations. Miller v. Miller, Sax. 391; Aspinwall v. Aspinwall, 4 Dick. Ch. Rep. 302. Consequently the only question is whether it either indicates or gave rise to a change in the mental attitude of either party, showing mere consent to the separation instead of protest on the part of the wife, and instead of obstinate persistence on the part of the husband.
If, with this view of the question at issue, we consider the evidence, the statutory fault -of the husband is proved.
The continuance of the husband’s determination is also manifest. His demand that she should leave not only the house but even the town where they had lived, so that his practice might as little as possible be disturbed; the insertion of that provision in the deed of separation; his desire, expressed before the deed was signed, that his wife should know that he was absolutely intent on divorce; his assertion, when examined in this cause, that he had “had no personal dealings with Mrs. Power whatever” since the separation began, and the tone of all his testimony during that examination, make it plain that at no time has he relented in the least from that hostility to marital relations which caused their severance. Hor has he ever had the slightest reason for thinking that, if he suggested to his wife a desire for reconciliation, she would not gladly meet him with an unchanged purpose.
On all the evidence we can reach, no other conclusion than that the desertion, which took place in September, 1899, began and has continued because of the willful, persistent and obstinate determination of Dr. Power to abandon his wife.
The decree dismissing the wife’s petition should be reversed and in its stead a decree should be entered divorcing the parties from the bond of matrimony because of desertion by the husband.
The petition of Mrs. Power also prays that the custody of the children may be awarded to her. In response the husband, by way of cross-petition, asks that the custody of the older child, a boy, born in May, 1894, may be awarded to him, and the chancellor has so decreed.
After much hesitation we deem this decree also unwarranted.
Three considerations were chiefly influential upon the mind of the learned vice-chancellor by whom the decree was advised: the wealth and character of the husband’s parents, who were willing to take the boy into their home and educate him; the desirability of withdrawing the boy from city life into a country home, and of subjecting him to such useful restraints as a father is more likely than a mother to impose.
But, as to the first point, it must be remembered that the decree gives the custody of the child to his father, not to his grandparents, and that they will be under no obligation to him other than such as their affection may create. While this affection may be strengthened by association with the child, we should not assume that without association it will be barren of utility to him while they live to manifest it. It is reasonable to hope that, with their abundant means, they will desire in any case to afford him the benefits of education.
As to the difference between city and country life the advantage of either over the other for a boy approaching maturity depends much upon the surroundings. The neighborhood in which Mrs. Power and the children live appears by the testimony to be an excellent one, the residence of refined people, many of whom are her friends, and with whose children this boy associates in' play and at school. Two or three months every
On neither of these points does there appear any great preponderance in favor of awarding custody to the father.
But, on the remaining ground for judgment, the advantage of abiding with one parent rather than the other, we think the preponderance is decidedly with the mother.
The boy is only ten years of age, too young, even if he were an .unruly child, to be beyond maternal control; he has been brought up under his mother’s care, and undoubtedly feels for her the affection which such a relationship usually establishes, while his feeling for his father must be modified by estrangement. No suggestion is made that Mrs. Power is not in every respect fit to fulfill her duty to her children. Since their birth she has displayed toward them an ardent and self-sacrificing love, for which we find no equivalent in her husband’s disposition, who appears to be, on the contrary, of a hard, intolerant and unsympathetic temper. The effect upon the moral and spiritual nature of the child, produced b}r constant association with such a mother far outweighs in value the' possible material advantages to be secured by separation from her.
On the score of pecuniary ability to maintain a home, the evidence furnished by Mrs. Power’s conduct since the separation is satisfactory if that ability bo'supplemented by such assistance as it will be Dr. Power’s duty to render.
In view of all conditions we think the custody of the children should be awarded to Mrs. Power, and that the contrary decree should be reversed.
Let the cause be remitted to the court of chancery that proper order may be made for alimony, for the maintenance of the children and for other matters incidental to the decrees now directed.
For reversal — Dixon, Garrison, Fort, Bogert, Vredenbtjrgh, Green — 6.
For affirmance — Hendrickson, Pitney, Swayze, Vroom— 4.