Rosenfield v. Rosenfield , 84 N.Y.S.2d 389 ( 1948 )

Callahan, J.

The parties cross-appeal from the decree in an action for separation. The judgment awarded a separation to the wife on the ground of the defendant’s cruelty and dismissed the husband’s counterclaim for separation based on cruelty and abandonment by the plaintiff. The custody of the child of the parties was awarded to the defendant with broad rights of visitation in the mother.

The marriage of the parties to this action took place on August 24, 1935, and final separation on July 16, 1946. The only issue of the union is a son born on September 19, 1942.

The alleged acts of cruelty on the basis of which a decree was awarded in the plaintiff’s favor occurred over the years between 1939 and 1946.

We find, however, that the plaintiff has failed to establish by a fair preponderance of the credible evidence that the defendant has been guilty of such cruel and inhuman treatment as to warrant a decree of separation in favor of the plaintiff. It is our opinion that the differences between the parties were largely related to disputes concerning property. We believe that the primary and immediate cause of the separation was an effort on the part of the wife to induce or compel the defendant to purchase a considerable amount of jewelry and furs for her adornment and gratification. It also appears that the parties quarreled over stock in a corporation controlling the defendant’s business, and which the plaintiff claims to have been a gift from her husband. Indeed, the wife asserts that the defendant promised to purchase the jewelry and furs for her as part of a campaign to accomplish retransfer of the stock. The plaintiff contends that her husband has actually paid for the jewelry, but is conspiring with the seller to make it appear that he has not paid for the same because of failure to obtain return of the stock. The defendant denies any such conspiracy or purpose, and contends that the wife owns no stock in his corporation but holds only worthless certificates of which she improperly took possession.

It is not necessary to decide the dispute regarding the stock. Perhaps neither party has told the whole truth in the matter. As for the jewelry and its place in the rift between these parties, it appears that this was taken on memorandum. Bach memorandum was signed by the wife, and only one by the husband. The plaintiff got at least some of the jewelry when her husband was not even present. The memorandum agreement signed by the latter covered several pieces of jewelry, including a 11 love ring ’ ’ which the husband admittedly decided to buy for the plaintiff. The wife was familiar with memorandum transactions and caused insurance to be procured for the “ love ring ” alone. The plaintiff should know that the circumstances of her possession and purchases on memorandum require the return of the jewelry, but she persists in her refusal on what we consider an untenable claim, insofar as the record discloses, that the defendant has paid for the same. While the evidence with respect to the furs is not so complete, we find that at least one expensive fur coat is being retained by the wife with similar knowledge that the purchase price has not been paid.

The plaintiff has never surrendered, nor promised to surrender the stock to the defendant, and merely supports her determination to withhold the jewelry on the assertion that she will not permit the husband to be what she terms an “ Indian giver ”. In our opinion the attitude of the wife in retaining the furs and jewelry other than the “ love ring ” is unjustified, and the husband had the right to resist and refuse to be coerced into buying these luxuries. While the defendant’s conduct has not always been exemplary, at least to this extent he was not at fault.

All these transactions relating to the jewelry and furs occurred after January, 1946, which was the date of the husband’s last act of alleged cruelty prior to the period of July 11 to July 16, 1946. The incidents of these five days, however, even as recounted by the plaintiff were trivial insofar as they relate to any physical cruelty. The parties were quarreling bitterly over the jewelry, furs, and stock. It also appears that proceedings instituted by the jeweler were pending in the Magistrate’s Court.

With respect to the defendant’s counterclaim for a separation we are constrained to find that the alleged cruelty of the plaintiff has not been established by the proof, nor has the defendant made out a case of abandonment by a fair preponderance of the evidence under all the circumstances, and particularly in view of the fact that the wife was accustomed at times to go to live in a hotel with his knowledge and approval.

The effect of this decision is to leave the parties as they were before the institution of suit. We think that their disputes over property should be adjusted preferably by the parties themselves, or if not, then by the courts. We see no reason why the marital relationship should not be resumed. Their differences over material things should not be the principal concern of the parties, but they should join in an effort to repair the break in the family relations so that their son may be reared as a member of a family and not the victim of divided parenthood.

It is not necessary that we state our conclusions on other specific matters, which will be set forth in such new findings as may be made.

We make no determination with respect to custody on the assumption that such provision will be rendered unnecessary by a reconciliation. In the meantime the custody of the child may be continued as provided in the temporary order dated September 9, 1947, and entered in the Supreme Court, Westchester County, in the consolidated proceedings between the parties respecting custody.

The judgment below should be accordingly modified by striking such provisions as are inconsistent with this opinion and providing for dismissal of the complaint, and, as so modified, affirmed, without costs.