Williams v. Williams , 3 Silv. Sup. 385 ( 1889 )

Barrett, J.

The findings of fact of the learned judge at special term amply support the conclusions of law, and these findings of fact are in turn supported by the evidence. The testimony shows a plain case of abandonment at or about the time charged in the complaint. Prior to that time the parties had been living apart for upwards of two years. The defendant claims that during this period the plaintiff was in the wrong, and liable at any moment to be justly proceeded against for abandonment. This claim is without foundation. The plaintiff was always willing to live with the defendant if he would permit her to do so. He would not, however, permit her to live with him, except upon a most unreasonable and tyrannical condition, namely, that she should never see her mother again. It was not that her mother should live elsewhere, nor that the intercourse should be restricted, but that the door between mother and child should be shut, absolutely and forever. The plaintiff offered to go with the defendant if he would only let her see her mother. But the refusal was firm and peremptory: “When you leave this house, venare not to see your mother; * * * you shall not go where she is; you will have no communication with her; you shall not write to her,—have no-communication with her whatever. If you want to see your mother, you cannot go with me.” A few days later this was repeated. The plaintiff’s testimony is clear upon this point: “He came to me, and said: 1 What is your answer?’ I said: ‘It is just the same as 1 gave you Sunday night. If you will only let me see my mother, I will go with you.’ Then he said: ‘ You know what I told you Sunday night. If you want to see your mother, you can’t go with me.’” The defendant denies the imposition of this condition as-thus testified to; but the court, at special term, credited the plaintiff, and upon good grounds. The defendant admits that the mother question was a subject of debate between them, but seeks to give a somewhat different color to the conversation. This is his version: “Then I got up, and said: ‘ You must understand that you have got to give up your mother, and you will have to-choose between your mother and me.’ She said: ‘ You are asking too much when you ask me to give up my mother. I never can give up my mother.’ I said: ‘I don’t ask you to give up your mother wholly and entirely, but I simply require that your mother slxdl not come back to our house, and you shall not go away with your mother, and remain with her.’” Here there was no condition; and, although the language italicized was harsh and pretty close-in meaning to the plaintiff’s version, yet what follows would not have been unreasonable. But the contemporaneous letters tend to corroborate the plaintiff with regard to this disputed condition. The defendant demanded her return, and she answered: “If it is to be under the same conditions as you offered me before, you know my answer.” In his reply he reiterates his command to return, but observes: “I am more averse to your mother than ever, since I have learned of some of the things which she has said about me, and I cannot stoop to make conditions as to her. ” He does not here deny that he-had made such conditions before, as intimated in his wife’s letter. All that she desired was that he should withdraw them, and this he never did. She did not wish to impose her mother upon him. She told him that all she asked was to see her mother occasionally; that she would never mention her mother’s name; and that her mother should never cross his path. But he was obdurate, and this obduracy pervaded the entire period of separation. It is clear that, upon these facts, the defendant had no cause of action against the plaintiff for abandonment; and that he could not successfully interpose her refusal to live with him, because of this unreasonable and inhuman condition, as an answer to her subsequent entreaty to be permitted to return to him. Whether it would be different if such a cause of action for abandonment had actually accrued it is not, therefore, necessary to consider.

The plaintiff, at the time she begged done nothing which justified the defendant’s refusal, and his abandonment then commenced. That the facts at this point establish a complete abandonment cannot be doubted. It was deliberate and definite. He not only refused to take the plaintiff back, or to listen to her pathetic appeals, but he left Hew York, took up his residence in another state, and there proceeded to obtain a divorce a vinculo. That settled the status of the parties, and the present cause of action at once accrued.

The other questions require but little consideration. The appellant concedes that the court is bound by the principle of the O’Dea Case, 101 N. Y. 23, 4 N. E. Rep. 110, and consequently the judgment of the Minnesota court, awarding tlie defendant a divorce a vinculo, was properly excluded.

The alimony awarded was somewhat larger than the circumstances warranted. The defendant earns from $3,000 to $3,500 per annum, and the plaintiff’s income is about $1,000 per annum. The court at special term allowed her $1,500, namely, $500 for the child, and $1,000 for herself. That gives her a total income of $2,500, and leaves the defendant from $1,500 to $2,000. To earn this professional income the defendant must have an office and certain professional equipments. All this should be considered, for upon the defendant’s professional success the plaintiff is wholly dependent for security in obtaining punctual and steady compliance with the decree. He should certainly not be crippled in, his efforts to provide the necessary means. Upon the whole, we think the provision for the child should stand, but the sum awarded to the plaintiff should be reduced to $500 per annum.

The counsel fee was unauthorized. The statute (Code Civil Proe. § 1769) only makes provision for costs; that is, in the final judgment. All sums necessary to enable the wife to carry on the suit must be awarded on special motion. Beadleston v. Beadleston, 103 N. Y. 402, 8 N. E. Rep. 735; Percival v. Percival, 14 N. Y. St. Rep. 255.

The judgment appealed from should be modified in the particulars specified in this opinion, and as thus modified, affirmed, without costs of this appeal.

Daniels, J., concurs in the result.