Harris v. Harris

• Decision Date: 17 May 1965
• Citation: 259 N.Y.S.2d 481,46 Misc.2d 355
• Parties: Cynthia G. HARRIS, Plaintiff, v. Middleton A. HARRIS, Defendant.
• Court: New York Supreme Court

Page 481

259 N.Y.S.2d 481

46 Misc.2d 355

Cynthia G. HARRIS, Plaintiff, v. Middleton A. HARRIS, Defendant.

Supreme Court, Special and Trial Term, New York County, Part XII.

May 17, 1965.

William S. Miller, New York City, for plaintiff.

Cora T. Walker, New York City, for defendant.

THOMAS DICKENS, Justice.

In this action for a separation from bed and board, plaintiff-wife charges defendant-husband with the following marital breaches: (a) Failure to support; (b) cruel and inhuman treatment; and (c) abandonment.

The causes of action for failure to support and for cruel and inhuman treatment, I dismissed because of the utter lack of proof for the making out of a prima facie case. The cause of action for abandonment I withheld for further deliberation, in view of the nature of the evidence. After giving the subject of abandonment much thought during the period of ampliation, i have come to the conclusion that in this aspect of the case, plaintiff has also failed to present a preponderance of credible evidence to enable her to win my accord with her theory of an abandonment.

The testimony produced at the trial, developed the following salient facts, which reflected helpful light on the subject of abandonment:

Plaintiff and defendant intermarried on June 29, 1952. Twice during the marriage, according to plaintiff's testimony, once in 1961, and again on May 28, 1964, defendant left plaintiff. The second rupture of the marriage on May 28, 1964 proved to be the final jumping-off place in their marital relationship. On that day, when defendant left the homestead, he thereupon proceeded to take the alternative step of procuring for himself temporary quarters at the 63rd Street branch of the Y. M. C. A. Nevertheless, he returned to the apartment a number of times thereafter with the object of getting some of his personal effects. When he went there, however, on the occasion toward the end of July, 1964, he found that plaintiff had changed the lock on the door and had thereby effectively barred him from gaining ingress to and egress from the apartment. Although they had been housemates of the apartment by virtue of its purchase in their joint names, plaintiff arbitrarily now retains sole control and possession of the abode.

As bearing on the wife's equity, be it observed here that both plaintiff and defendant are employed by the New York State Division of Parole, and have been so employed since the time when they went into double harness. Her salary has been slightly smaller than his.

When the parties were married in 1952, plaintiff's father was then living with her. After the marriage, he continued to live as a member of the marital household. At the trial, defendant openly declared on the witness stand his objection to this imposition.

He was opposed to having his father-in-law continue further as a member of the household. At that time he willingly extended the olive branch for a reconciliation by offering to return provided his father-in-law would be made to vacate the premises and live elsewhere. The olive branch has failed to bear reciprocal fruit.

The question to be answered now is, do the facts reviewed heretofore spell out an abandonment by the defendant within the field of the legal principles that I am applying here? I turn to the law for what I believe is the answer.

The law holds that for plaintiff to succeed, she must prove that defendant had unjustifiably abandoned her without her consent and with intent not to return. Temporary absence is not abandonment. The absence must be complete with an intent not to return (Grossman, N. Y Law on Domestic Relations, Chap. XIV, sec. 491, pp. 350, 390; Purvin v. Purvin, Sup., 51 N.Y.S.2d 492; In re La Penna's Estate, 16 A.D.2d 655, 26 N.Y.S.2d 497). A decree should not be granted except upon very satisfactory proof of the fact of abandonment (Simon v. Simon, 6 App.Div. 469, 39 N.Y.S. 573, 575). Even where a spouse leaves the marital bed without justification but offers in good faith to return as the bedmate, there is no abandonment (Ziegler v. Ziegler, 10 A.D.2d 270, 198 N.Y.S.2d 875, affd. 9 N.Y.2d 737, 214 N.Y.S.2d 349, 174 N.E.2d 332), unless it is found that the offer to return was not made in good faith (Edwards v. Edwards, 281 App.Div. 868, 119 N.Y.S.2d 607). The offer made by defendant on the witness stand to resume marital relationship with plaintiff to the exclusion of her father as part of their household, was not in any manner weakened by plaintiff as to good faith; therefore, I find on the credible evidence, not on the number of witnesses, that the peace offer was made in good faith. This is an instance of 'Testimony is to be weighed, not counted.' Ballentine's Law Dictionary (Eng. Trans.), pp. 982, 1277.

Defendant seems to be within his rights when he called for the ouster of his father-in-law from their future home.

A...