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1900]

Osterhoudt v. Osterhoudt.

much attached to, and wish not to be separated from, her, while the husband has less means, has no home provided for the children, and had never shown a strong desire for their companionship.

Van Brunt, P. J., and Barrett, J., dissenting.
Appeal from special term, New York county.

Action by Harris P. Osterhoudt against Ella H. Osterhoudt. Judgment granted plaintiff a divorce and defendant the custody of the children. Plaintiff appeals from the order granting the custody. Affirmed.

Argued before VAN BRUNT, P. J., and BARRETT, Rumsey, O'BRIEN, and INGRAHAM, JJ.

John L. Brower (William M. Mullen, counsel), for appellant.

Eldon Bisbee, for respondent.

INGRAHAM, J. This action was brought by plaintiff to obtain a divorce from the defendant upon the ground of her adul

CUSTODY OF CHILDREN AFTER DIVORCE OR SEPARATION,-continued.

the controversy between the father and mother and ascertain and determine that question.

Matter of Hartman, 23 Week. Dig. 128.

When the husband succeeds in an action for divorce his right to the custody of the children is absolute, unless the good of the children themselves requires some other disposition of them.

Ullmann v. Uhlmann, 17 Abb. N. C. 236, 264.

While as a general proposition the father is regarded as the legal custodian of his children, this rule is required to yield when circumstances are such as to render it evident that its observance would probably be injurious to the children.

Matter of Watson, 10 Abb. N. C. 215.

In the case last cited the wife had left the husband at his suggestion, taking with her their children, whom she had cared for and supported for six years indépendently of their father. In view of their fondness for their mother, her exceptionable character and ability to provide for them, and the father's prior indifference, the court awarded their custody to the mother.

Appellate Division.

[Feb.

tery. Judgment was granted to the plaintiff dissolving the marriage, and awarding the custody of the two infant children of the marriage to the defendant, and the plaintiff appeals from so much of the judgment as disposes of the custody of the children.

It appears that the parties to this action were married in the year 1879, and they seemed to have lived together in this city or vicinity until about the year 1895. The plaintiff is employed and resides in the city of New York, and since the fall of 1885 the defendant appears to have resided principally in Utica, N. Y., although she spent a portion of the time in the city of New York, with her husband. In February, 1897, she left the plaintiff, and since that time has resided away from him at Utica and in Bethlehem, Pa. Efforts were made by the plaintiff's brother to procure a reconciliation between the parties, which were unsuccessful, and in the latter part of the year 1897 the defendant went to the state of North Dakota, and on February 12, 1898, commenced an action in that state for a divorce from the plaintiff upon the ground that the plaintiff had failed

CUSTODY OF CHILDREN AFTER DIVORCE OR SEPARATION,-continued.

In Crimmins v. Crimmins, 28 Hun, 200, it was held that the court was without power to modify a decree awarding the custody of a child to the father, granted in his suit for a divorce for the wife's adultery, so as to permit the wife to visit the child. This rule was announced as based on principle and reinforced by the statute.

Under the statute in force at the time the decree was made the provision for a subsequent modification applied only when the wife was the plaintiff. Afterward § 1771 of the Code of Civil Procedure made an application for such a modification available to either party regardless as to who was plaintiff in the action.

So that at present the court has power to permit a divorced wife access to or custody of children of the marriage, the reasons given for denying it on principle in Crimmins v. Crimmins being its chief value as an authority.

Where the wife as plaintiff in an action for a separation fails to obtain the principal relief sought, i. e., the separation, the court has no jurisdiction to award the custody of minor children of the marriage to the wife. Davis v. Davis, 75 N. Y. 221.

In the case last cited, Andrews, J., sai “The general jurisdiction which

1900]

to provide for her and her children the common necessities of life. Such proceedings were had that on June 30th judgment was entered in the district court of Morton county, in the state of North Dakota, granting the defendant an absolute divorce from the plaintiff. Subsequently the defendant returned to the state of New York, and in October, 1898, at Jersey City, in the state of New Jersey, she married one James Wilson, and since that time has lived with him as his wife; and it was the defendant's relation with Wilson upon which the plaintiff based the charge of adultery, which resulted in the judgment of divorce granted in this action. There are two children of this marriage, one born on September 3, 1881, who was 17 years of age at the time of the trial; and the other, born in 1887, was 11 years of age at the time of the trial. Both daughters have resided with their mother (the defendant) from their birth, and to the present time they have been under the constant care of their mother, who has always acted towards them as a devoted mother, and to whom these daughters appear, from the testimony, to be fondly attached. The defendant has superintended

Osterhoudt v. Osterhoudt.

CUSTODY OF CHILDREN AFTER DIVORCE OR SEPARATION, -continued.

appertains to the supreme court, as a court of equity, to interfere for the protection of infants—and by virtue of which, in a proper case, where the interests of the infants require it, they may be taken even from the custody of the father and placed under the care of strangers-cannot be invoked to sustain the judgment in this case.

In this statutory action, the power of the court is to be sought in the statute itself, and only such judgment can be rendered as is authorized thereby."

Upon annulment of a marriage because one of the parties had, at time it was contracted, another husband or wife living, the custody of the children of such voidable marriage is to be awarded to the innocent parent, who is usually the plaintiff, but where cohabitation continued after knowledge of the existence of the former spouse, the partics are in pari delicto and neither can claim such custody absolutely.

Safford v. Safford, 31 Abb. N. C. 73; 27 Supp. 640.

In the case last cited the court said, "On moral grounds, cohabitation should have ceased when it was discovered that the first husband was living. The court may upon final decree award the custody to either parent as the interests and welfare of the child require. It is a matter of judicial

Appellate Division.

[Feb.

their education; has, out of her private means, paid their school bills, and is continuing the education which she has thus supervised and controlled. Both daughters were examined on the trial, and testified to their strong affection for their mother, and their desire to continue to live with her. It further appears that the plaintiff has no home in New York, that he is living in a boarding house, has an income of $2,000 a year, which he has received several years, and there is no evidence that he has any expectation of receiving any greater income; while the defendant has property of her own, has a comfortable home, and is able to amply provide for her daughters, giving them proper education and support, and giving to them the care and attention which daughters require from a mother. There was no charge of any kind against the character of the defendant, except so far as she was guilty of adultery by reason of her marriage to Wilson after she obtained a decree of divorce in the state of North Dakota. The plaintiff testified that he was served in the city of New York with the summons and complaint in the action in the state of North Dakota, but declined to appear in that action, or take any part in the proceedings there, under advice of

CUSTODY OF CHILDREN AFTER DIVORCE OR SEPARATION,-continued.

discretion, and the tendency of the courts is in the direction of giving the younger children and female children of all ages to the mother, and if the interests of the infant demand such a course, the custody may be awarded even to a third party."

In this case a clause was inserted in the decree permitting the father to visit the child.

In Bailie v. Bailie, 30 App. Div. 461; 86 St. Rep. 228; 52 Supp. 228, in which the defendant was guilty of adultery under circumstances the same as in the case in the text, on an application for an allowance for the support of a child which was in the custody of the defendant, Barrett, J., said, "The plaintiff, under the circumstances, is the proper custodian of the child; and the court should not, even impliedly, recognize the defendant's right in that respect by requiring the plaintiff to furnish her with the means of maintaining the present custody."

In McGown v. McGown, 22 Misc. 307; 83 St. Rep. 996; 49 Supp. 996, the custody of the child was awarded to the father but the privilege of visiting the child at least four times a year was allowed under the supervision of a

1900]

Osterhoudt v. Osterhoudt.

counsel; that, after the final separation in 1897, plaintiff made no effort in any way to protect or care for the children; made no provison for their support, education, or maintenance. Although he knew that his wife had definitely separated herself from him, and had commenced an action to obtain a divorce from him, he refused to make any provision for them during this period, allowing the mother to provide for the children,support, educate, and maintain them. He expressly testifiedupon the trial that he had no reason for thinking that the mother was not a proper custodian for the children beyond the fact that she had married the second time. In the whole record the only offense charged against the defendant-the only fact from which any inference could be drawn that she was not in all respects a good woman, and the proper person to administer and care for the welfare of these two children-was that, after she had obtained a divorce in the state of North Dakota, believing that divorce to have finally dissolved the relations between herself and the plaintiff, she contracted the second marriage. This second marriage was valid in New Jersey if the court of North Dakota had jurisdiction, and, if valid there, would have been

CUSTODY OF CHILDREN AFTER DIVORCE OR SEPARATION,-continued.

referee or such person as the father might delegate. In this case the mother had been divorced for adultery comitted in the same way as in Bailie v. Bailie and in the case in the text.

In Matter of De Angelis, 1 Edmonds Sel. Cas. 476, Edmonds, J., held (1847) that the New York court of common pleas although having jurisdiction of a suit for divorce, had no jurisdiction to dispose of the custody of the children of the parties.

Where husband and wife are living in a state of separation without being divorced, the one to whom the custody of a child is awarded may be required to give security that such child will be forthcoming when required. People v. Paulding, 15 How. Pr. 167.

c. Agreements of parents.

An agreement between the parties to an action for a divorce as to the custody of the children will not have a controlling influence on the court in formulating the decree in that regard.

Cook v. Cook, 1 Barb. Ch. 639. VII. N. Y. A. C.

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