Osterhoudt v. Osterhoudt

Barrett, J. (dissenting):

This is, .I apprehend, the first time in the juridical history of any civilized country when the custody of the children of the marriage *79has been denied to the innocent plaintiff in a divorce suit and granted to the guilty defendant. It is so momentous a departure from universal precedent that the grounds upon which it proceeds should be critically examined. The fundamental fact found by the court was the defendant’s adultery. It was open, continuous .and unrepentant. Upon that finding the court granted the plaintiff a divorce, and in the same decree awarded to the convicted defendant the custody of the children, and authorized her to bring them up in the home of the man with whom she committed the adultery. This is sought to be justified on the following grounds: That the adultery was but the legal consequence of the defendant’s mistaken judgment as to her real status; that she intended to marry Wilson, and believed that she had a legal right to do so; that, with the exception of this single mistake,” her life has been blameless; that she has been a good and loving mother; that the children are devoted'to her; that they do'not care for their father ; that they have become very fond ” of Wilson ; that their father is a poor man, earning but a small income, while their mother has a comfortable home with Wilson, has property of her own, and is able to provide amply for them. Upon these grounds the respondent invokes the rule that the welfare of the children, which is the paramount consideration, should incline the court to treat their mother’s offense as technical or venial; to sanction their enjoyment of the material advantages which her pecuniary condition and present relations afford; and not to deny them the comfort of maternal affection. This is nothing but a specious plea for the laxity of the marriage relations; and it is as unsound as it is vicious. The defendant made no mistake ” in the execution of her deliberate purpose to free herself from the husband she had ceased to love and to ally herself with another. In February, 1897, she left her husband for no apparent or disclosed cause. The plaintiff’s brother, Julius, then went to Bethlehem, where she was stopping, and begged her to return and live with her husband; but she refused, assigning no reason. He visited her again, when she was living in Utica, and made' another earnest effort in the same direction, still without success. Upon this occasion she told Julius plainly that what she wanted was a divorce; and Julius replied that she was not entitled to and could not get one. Her next step was to go to North *80Dakota, where she remained long enough to obtain one of the decrees of divorce for which that State has become notorious. This decree was not only void for- want of jurisdiction, but it was inherently fraudulent.. All the circumstances point to the fact that the defendant imposed upon the Dakota court by the sworn statement that she was, and had been for ninety days immediately preceding the commencement of her action, a resident of that State in good faith. She was manned in this State, and the evidence tends to show that she. has resided here ever since. She went to Dakota plainly not to reside there in good faith, but to obtain a divorce in bad faith. She went there to evade the laws of this State, where her contract of marriage was made, and where the statute forbade her divorce, to secure her freedom, under lax laws, upon an ‘ accusation that was as false as it was trivial. Her sole complaint in the Dakota court was that her husband “since May, 1895, has wholly and wilfully failed and neglected to provide for the plaintiff and her children tlie common necessaries of lifeP The accusation was untrue, as appears by the- undisputed evidence in the present record. When the defendant lived with the plaintiff he paid thirty dollars a week for the board of his family. This was more than three-fourths of his income. He testified without contradiction that all the money he earned was spent upon his family. He produced checks and receipted bills for $545 that went directly to the family in the year 1895, in addition to cash gimen to Ms wife ; and similar vouchers to the extent of $838 in 1897. These checks, and others for the sums spent in 1896, he handed to the defendant’s counsel, and was proceeding to give further details when the learned trial justice interposed with the observation that he did. not 66 propose to go into an accounting for every check he spent.” There was a. still grosser imposition upon the Dakota court in the concealment from it of the ■fact that, during the very period covered by its finding that the husband had willfully failed to provide for his wife and children the common necessaries of life, she was living with the children apart from Mm, and resolutely refusing to return to her duty. The decree was made upon the 30th day of June, 1898, and the defendant abandoned her husband upon the 11th day of February, 1897. And yet it was for the failure to provide her with the common necessaries of life “ for more than one year next preceding the com*81mencement of this action ” that the court granted her its decree. But for the suppression of the truth (as to the abandonment) and the affirmative statement of the untruth (as to the failure to provide the common necessaries of life), it is inconceivable that the..Dakota court could have granted such a decree. It is entirely clear, therefore, that the defendant procured the decree in question upon the pretense of a bona fide change of residence, upon a sworn complaint which she knew to be untrue, and by the suppression of a fact which she also knew would necessarily be fatal to her purpose. She had no reason to doubt the utter invalidity of the decree thus obtained; and the sequel clearly indicates that she placed but little reliance upon it. It is needless to say that she did not remain long in Rorth Dakota after the decree there was signed. In the following October we find her again in this State. First, however, she seems to have gone to Jersey City, where, upon the twenty-second day of that month, she went through the form of a civil marriage with Wilson, the mayor officiating. Two days later she supplemented this with a religious ceremony at West Hampton, on Long Island, in this State, bringing herself within the rule of People v. Baker (76 N. Y. 78), under which rule it is difficult to perceive how the defendant can escape the serious charge (of bigamy) connected with the commission of that act.

It- is quite evident that the offenses which are interwoven with the Dakota decree, and which permeate the defendant’s conduct throughout, are mala in se. It seems to be a shocking judicial conclusion that the moral training of these two young girls is to be intrusted to one who, to speak moderately, has reached her goal in the manner which this record discloses. Are these children to be brought up in the atmosphere of the home thus created, and in the center of the principles upon which it rests ? There is no reality here in the pretense of mistake. If the defendant did not know that the Dakota decree was fraudulent as well as void, it was because she lacked the moral sense to appreciate her own acts. She certainly did know, however, that it was a nullity when her husband brought this action. Her legal advisers did not fail to realize, and doubtless to advise her ■ of, the situation in which she was then placed. The law, as expounded by the Court of Appeals,, was not *82of recent origin. For many years it had been impressed upon our jurisprudence in firmly-repeated adjudications. Did she then recede . from her false position ? Did she retire from the adulterous association? No. She still covered herself with the thin and unclean' veil of the Dakota decree and kept on her determined course, still' living1 openly with the man of her later choice and utilizing the interval until the trial in poisoning the children’s minds against their father. The youngest of these children was asked how she became impressed with the idea that her father had not been kind to her mother, and her reply was: “ Because Mamma has told me things that he did, and I believe her.” The following questions were then put to her by the learned trial justice and she .gave the following answers: Q. Hasn’t somebody else beside your mother told you things? A. No. Q. No one besides your mother has told you anything about your father? A. No. * * '* Q. We are speaking about your mother. What did he ever do that you saw that was unkind ? A. He never did anything to her; he never gave her anything. Q. He never gave her anything? A. No. Q. Is there anything else ? A. I don’t know. Q. If you think of anything * * * that your father ever did to your mother that was unkind that you saw I want to know it? A. I think all children love their mothers better than they do their - fathers. Q. I don’t want to annoy you, but as I have got to decide this case I want you tell me any reason you have for thinking that your father was an unkind father or an unkind husband; anything you .can think of; you need not be at all afraid to tell me; cam, you, think of anything ? A. No. Q. You can't think of anything ? A. No."

As already pointed out, there is nothing in the record even suggestive of cruelty or unkindness on the-part of the plaintiff. His only crime in the eyes of the defendant seems to have been his limited income. The things ” which she told to this little child that he did ” have apparently been told to no one else — certainly not to the court. Are these children, then, to be taught to hate their blameless father and to love his successor ? Are they to learn, as they grow up, that there is no inherent sanctity in the marriage bond, that duty is an old-fashioned notion, that the desire of -the heart or the cráving of the senses is the essential thing, and that all acts are righteous which lead to their gratification ? It would be *83better for these children — better for their future here, and better for that wider future which lies beyond •— that they should share the modest and humble environment of their innocent father than enjoy the material advantages, or even a mother’s love, at the expense of principle and morality. Their choice should not weigh with us for a moment. If they desire to live with the daily and hourly spectacle of this new home before their eyes, their moral sensibilities have already been blunted, or else they are too young to appreciate the situation. In either case a court of justice should not fail to guard and guide them correctly. The sorrow of the moment will be effaced when they realize, under less progressive ” and more righteous teachings, what it is from which they have escaped. I cannot but think that the affirmance of this provision . of the judgment appealed from would be a lasting stain upon the' records of the court. Before such a precedent is made — rewarding the guilty, punishing the victim, and dooming the children to participation in successful evil — there should at least be a protest.

The judgment, so far as appealed from, should, therefore, be reversed, and the custody of the children awarded to the plaintiff.

Van Brunt, P. J., concurred.

Judgment affirmed, with costs.