Simon v. Simon

Williams, J.:

. The principles of law applicable to a case of this kind were properly stated by the learned trial judge in his opinion. The rule laid down was, in brief, that “the term abandonment, as used in the law. of divorce, contemplates; a voluntary separation, of one party from the other, without justification, and with the intention of iiot returning.” (Williams v. Williams, 130 N. Y. 197 .)

The learned.trial judge" seems to have listened patiently to the very WohuninoUs', evidence given by the. parties,, and to have fairly considered the same. He saw the witnesses, and was able to observe their demeanor upon the stand, and to judge more correctly than we can- do what the real- truth was. He concluded that there was no proof of such abandonment on the part of either the husband or *471 the wife, as, under the welbsettled rules of law, called upon the court-to decree a separation from bed and board in favor of either party. There was a separation, but it was followed by repeated and continued negotiations for a return to each other. The husband seems to have insisted upon an unconditional return by the wife, while she insisted upon certain conditions being complied with by him before she returned.

These negotiations continued down to the time of the commencement of the action. We do not feel disposed to enter into a discussion of the questions of difference between the parties. They were questions about which people of both sexes disagree. While, in a legal sense, the husband is the head of the family, .and has the right to rule the household and compel his wife, as well as his children, to obey him and submit to his dictation in the details of the management of the house and the servants, still the practical view of the marital relations usually is that the wife within her peculiar sphere, the home, should have her own way, and to a reasonable extent be allowed to manage and control the details of housekeeping and servants. An intelligent, high-spirited -woman should certainly not be subjected in the presence of servants and guests to humiliation and ill-treatment by her husband, by the offensive assertion on this head that he is master and she must in all things obey him. The separation was evidently the result of disagreement between the parties upon.these lines. Which was right and which wrong, or whether both .were"in.part right and in part wrong, was a subject upon which much evidence was given upon the trial. Whether the learned trial judge was strictly correct in all the suggestions made by him in his opinion we do not attempt to. decide. We are only called upon to determine whether the trial court was wrong in deciding that abandonment was not so clearly shown as to call for the granting of the decree of separation.

It was a question of fact to be determined by the trial court, one in which the public as well as the parties were interested. A decree should not have been granted except upon very satisfactory proof of the fact of abandonment.

After hearing a full discussion of the facts by counsel, and after an examination of the record presented to us, we are not prepared to say that the conclusion arrived at by the trial court was erroneous.

*472 The court having refused to grant the decree .of separation, very properly declined to consider or pass upon the question of the custody of the children. The statute does not seem to provide for any such relief in favor of the husband in a case where the decree of separation is refused him. The wife does not complain of the decree as it is. She has the custody of the children, awarded to her by the court in a proper proceeding instituted for the purpose of determining as to their custody. The husband has remedy by another proceeding of a like nature, whenever the condition of things shall have changed, to again investigate and determine as to the future custody of the children.

The judgment appealed from should be affirmed, with costs.

Babbett and Bumsey, JJ., concurred; O’Brien and Patteeson, JJ., dissented.

Judgment affirmed, with costs.