Bunim v. Bunim ( 1949 )

This case involves a problem as perplexing as any in the field of human relationships, and, while a different result could, of course, have been reached below, I hesitate to stamp as an abuse the discretion exercised by the Special Term judge, and affirmed by four justices of the Appellate Division, only after the most painstaking and conscientious consideration.

Especially in a case such as this, the judge who sees and hears the witnesses, who is face to face with the children and the parents, is in a far better position to make a decision calling for the exercise of discretion than is the appellate judge whose only source of guidance is the cold print, the lifeless pages, of the record. No one can disagree with the statement of high principle in the opinion for reversal, but, on the other hand, no one can dispute that "The factors that made his [the Special Term judge's] duty clear to him can at this distance be seen by us only, as it were, through a glass darkly." (People ex rel.Herzog v. Morgan, 287 N.Y. 317, 322.)

The primary and paramount concern of the trial judge was the welfare and happiness of the children. Would it better serve their interests and their well-being to place them with their mother or with their father? Bearing directly on that issue was evidence that the father was inordinately preoccupied with his professional duties; that, as a result, he gave little of his time or of himself to the children; and that not infrequently he treated them brusquely, impatiently and even intemperately. Likewise pertinent was proof that the wife was ever a good and devoted mother; that her indiscretions were unknown to the children; that she was deeply devoted to the children and truly concerned with their welfare; and that, for their part, the children returned her affection with an attachment that was, in the language of the trial court, "almost Biblical" in its intensity.

With such evidence — and there was more of like import — in the record, the decision at Special Term and the judgment of the Appellate Division awarding custody to the mother cannot be said to be completely beyond the pale of permissible discretion.

I would affirm the judgment. [See 298 N.Y. 923.]

LOUGHRAN, Ch. J., LEWIS and CONWAY, JJ., concur with DESMOND, J.; FULD, J., dissents in opinion in which DYE, J., concurs.

Judgment accordingly.