Bohmert v. Bohmert

• Decision Date: 12 January 1926
• Citation: 241 N.Y. 446,150 N.E. 511
• Parties: BOHMERT v. BOHMERT.
• Court: New York Court of Appeals Court of Appeals

241 N.Y. 446

150 N.E. 511

BOHMERT

v.BOHMERT.

Court of Appeals of New York.

Jan. 12, 1926.

Action for separation by Anna Bohmert against William R. Bohmert. From a judgment of the Appellate Division (210 N. Y. S. 1, 213 App. Div. 103), reversing on the law and facts a judgment of dismissal, and directing judgment for defendant on his counterclaim, plaintiff appeals.

Affirmed.

Appeal from Supreme Court, Appellate Division, First Department.

William O. Gennert, of New York City, for appellant.

Henry Goldstein and Samuel Gottlieb, both of New York City, for respondent.

POUND, J.

This is an action for a separation. The parties hereto had had numerous unhappy differences and dissensions which culminated in an altercation over a woman who had been brought by the wife into their home as an investigator or detective under the false pretense that she was a friend of the wife whom the husband had previously met. The husband ordered the woman out of the house on the day she arrived. Obviously she had been brought in to be a witness for the wife. Plaintiff, in a rage, left with her. This was on June 18, 1923. On June 21st, three days thereafter, she commenced this action. The complaint alleges numerous acts of alleged cruel and inhuman treatment. The answer denies the material allegations of the complaint, and alleges that plaintiff abandoned defendant on June 18th. The reply denies the abandonment, and justifies the departure of the wife as being due to the conduct of the husband.

On June 29th a motion for temporary alimony was heard. Defendant in his affidavit in opposition stated that ‘his home is now ready for her,’ and, therefore, asked that the motion be denied. The motion was denied. On March 28, 1924, plaintiff made a motion for leave to discontinue the action, which was denied.

When the case came on for trial on April 24, 1924, the trial court dismissed the complaint for failure of plaintiff to present any proof in support of its allegations. The plaintiff made no attempt to establish her cause of action. The findings are to the effect that plaintiff left the house temporarily, with the intention of returning thereto; that defendant's offer on the motion for alimony to take her back was made in bad faith, to defeat the motion; that on February 26, 1924, eight months after bringing suit, she offered to return to his home, but the offer was rejected on the ground that she had made an irrevocable election by commencing this action (this offer was, however, in the form of a formal demand on the husband made by the wife's attorneys); that the offer to return was renewed by plaintiff's attorneys both at the opening of the trial and at the conclusion of defendant's case and at the conclusion of the entire case, but was refused; that by so refusing defendant had deserted plaintiff. The counterclaim of the defendant for a separation on the ground of desertion was dismissed. Both complaint and counterclaim having been dismissed, no legal separation was decreed.

[1] From the judgment entered on this decision defendant appealed. The Appellate Division struck out the foregoing findings, and made new findings. It found that the defendant's offer on the motion for alimony to take plaintiff back was made in good faith, and that plaintiff refused to accept it; that plaintiff left defendant on June 18th, but it made no finding as to her intention to return at that time. It omitted all findings as to plaintiff's offers to return, except to find that for nearly eight months, and until February, 1924, plaintiff made no offer to return to defendant. It properly struck out the finding that defendant deserted plaintiff by reason of his refusal to receive her back on her offer to return as not within the issues. In the opinion it is said that the Special Term erred in receiving evidence of plaintiff's belated offers to return home made long after the action was brought. A decree of separation against plaintiff for her abandonment of dofendant on June 18, 1923, was granted.

[2][3][4][5] The decision thus made appears to rest on the proposition of law that, when a wife leaves her husband without legal justification, and begins an action of separation against him for cruel and inhuman treatment, her election to return to him must be promptly made, or evidence thereof will not be relevant on her defense to his counterclaim of abandonment. In making its findings, however, the Appellate Division has proceeded as if this evidence, although in the case, was of no probative force. The rule of law in the opinion is too broadly stated. Evidence of offers to return is properly received in a separation action for abandonment as bearing on the question of abandonment or temporary absence and the question of the right to return after an abandonment.

Although the rule has been generalized as holding that desertion ‘contemplates a voluntary separation of one party from the other without justification, with the intention of not returning’ (Williams v. Williams, 29 N. E. 98, 130 N. Y. 193, 197,14 L. R. A. 220, 27 Am. St. Rep. 517), it has not been held that the mere departure of one spouse from the other with the present intention of not returning is in and of itself a finality which entitles the other party to a decree.

The right of the wife to return after leaving her husband was recently considered in Silberstein v. Silberstein, 113 N. E. 495, 218 N. Y. 525. Following the reasoning in that case the first question to be considered is whether, as between mere temporary absence and intent to abandon, the evidence sustained a conclusion of abandonment. If the wife's absence is a temporary one, which has not ripened into an abandonment at the time she offers to return, it is the husband's duty to take her back. Departure from the home, followed by the commencement of an action on charges afterwards withdrawn, may be evidence bearing on a wife's intention to abandon her husband, but it is not conclusive on the rights of the parties. It is her privilege to change her mind, drop her charges, and ask her husband to receive her. Her conduct amounts to abandonment only if it is persistent and obstinate. But for eight months after plaintiff left her husband she made no...