Kennedy v. Kennedy ( 1965 )

Taylor, J.

This is an appeal by a husband from the support provisions of an order of the Family Court of Schenectady County in favor of his wife. The parties were married in 1941. The issue of the marriage is a son bom in 1949. Although dissensions had long since interrupted the conjugal relationship, they continued to live in a jointly owned home until August, 1963 when the place of employment of the husband was shifted to Brooklyn, Hew York, where except for periodic visits to Schenectady he has continued to reside in a single room. In Hovember, 1962 respondent wife charging the husband with neglecting to provide fair and reasonable support for her and their son petitioned the court for an order directing him to provide such in accordance with article 4 of the Family Court Act. A temporary order entered accordingly on December 5, 1962 was made permanent on January 1, 1963 upon the consent of the husband. On April 24, 1964 she applied for an increase in the amount previously awarded, an application which he resisted essentially on the ground that she had abandoned him in a legal sense by wrongfully refusing to accompany him to Brooklyn. Upon appeal from the order entered in the proceeding the husband principally contends that respondent wife failed to demonstrate “any legal grounds for her support ” and that her refusal to join him in another locality terminated as a matter of law his duty to support her. In our view neither of these grounds has merit. That appellant was under the duty to provide separate maintenance for his wife was adjudicated on his consent and is the law of the ease. In essence the court below found that her rejection of the husband’s offer to establish a new matrimonial domicile was for good cause and that the proposal was not made in good faith. On this record we cannot say that its findings are unsupported by the evidence. Order affirmed, with costs. Gibson, P. J., Reynolds, Aulisi and Hamm, JJ., concur.