Salk v. Salk

Decision Date28 October 1975
PartiesKerstin SALK, Plaintiff, v. Lee SALK, Defendant.
CourtNew York Supreme Court

Dressel & Altman by Leon Appel, New York City, for plaintiff.

Solomon & Solomon by Philip Solomon, New York City, for defendant.


This is an action for a divorce instituted by the plaintiff-wife; a counterclaim for divorce was interposed by the defendant-husband. Both parties requested custody of the two minor children, aged 14 and 8. Throughout the pendency of this action the parties continued to reside in the marital domicile, a spacious brownstone located in Manhattan. This arrangement provided the parties with separate quarters but created extreme tensions and pressures on the parties and the children.


The plaintiff and defendant were married on April 9, 1960. There are two issues of the marriage, ERIC, born on August 21, 1961, and PIA, born on December 12, 1967.

At the time the parties were married, the plaintiff, a native of Sweden, was engaged in the fashion industry. Subsequent to the marriage, she was never gainfully employed. The defendant has earned a Ph.D in psychology, and was in the early stages of establishing his practice and reputation as a child psychologist.

During the marriage, commensurate with the defendant's professional advancement, the parties enjoyed a high standard of living.


After hearing all of the credible and admissible evidence and reading the documentary evidence, the court finds that both plaintiff and defendant have established their cause of action for divorce by a fair preponderance of the evidence.

The court has no question based on the bitterness and hostility involved in this litigation, that this has been a 'dead marriage' for some period of time. It is clear that occasional strife, lack of domestic harmony, frequent quarrels between husband and wife and mere incompatibility furnish no grounds for a divorce decree. (Rios v. Rios, 34 A.D.2d 325, 311 N.Y.S.2d 664; Hessen v. Hessen, 33 N.Y.2d 406, 353 N.Y.S.2d 421, 308 N.E.2d 891.)

The court finds that the marital discord of the parties goes beyond mere incompatibility. Based on all the evidence, the court finds that the defendant had embarked and continued for an extensive period on a deliberately hostile and rude course of conduct specifically calculated to create unhappiness and suffering to the plaintiff-wife. The court further finds that plaintiff has also engaged in a course of conduct over a continued period of time of verbal and physical violence towards the defendant-husband for the purpose of demeaning him and causing both physical and mental suffering.

Therefore, the court grants plaintiff's demand for a judgment of divorce on the grounds of cruel and inhuman treatment. Plaintiff's other causes of action for divorce or separation are hereby dismissed. Accordingly, defendant's counterclaim for a judgment of divorce on the grounds of cruel and inhuman treatment is granted. Defendant's other counterclaims for divorce or separation are hereby dismissed.

The concept of dual divorce raises the further issue of whether a wife is entitled to alimony, or is she barred by her husband obtaining a 'fault ground' decree of divorce? (D.R.L. Sec. 236).

In the present case, this court does not have to pass on this issue, inasmuch as the parties and their respective attorneys have entered into a stipulation in open court disposing of the financial and constructive trust issues in the action.


The most difficult issue presented to the court for disposition is the question of which party shall be awarded permanent custody of the infant issue of this marriage.

The pleadings herein indicated that neither party was seeking custody of the children on the basis that the other spouse was by his or her actions unfit to be the custodian of the children, but rather alleged that each was better fit to rear the children.

Thus the scope of the court's inquiry was not directed at applying the 'unfitness theory' as the criterion, but rather the use of an affirmative standard, which parent was 'better fit', to guide the development of the children and their future. In applying the 'better fit theory' it was inescapable that the 'fitness' of the parties, both their negative and positive attribut would be developed and put in issue during the course of the hearing.

Under well settled statutory and case law, neither parent has a Prima facie right to custody of a child (Domestic Relations Law §§ 70, 240); Wout v. Wout, 32 A.D.2d 709, 300 N.Y.S.2d 24 (1969); Sheil v. Sheil, 29 A.D.2d 950, 289 N.Y.S.2d 86 (1968). The issue is one of Comparative fitness, with the paramount and controlling consideration being the best interests and welfare of the child (D.R.L. §§ 70, 240); Matter of Bachman v. Mejias, 1 N.Y.2d 575, 154 N.Y.S.2d 903, 136 N.E.2d 866 (1956); Finlay v. Finlay, 240 N.Y. 429, 148 N.E. 624 (1925); Matter of Richman v. Richman, 32 Misc.2d 1090, 227 N.Y.S.2d 42 (Sup.Ct.1962).

Judge Cardozo, writing for the Court of Appeals in the Finlay case, Supra, stated the court's function in a custody dispute as follows:

'The chancellor * * * acts as Parens patriae to do what is best for the interest of the child. He is to put himself in the position of a 'wise, affectionate and careful parent' (citing case) and, make provision for the child accordingly.' (Id. 240 N.Y. at 433--4, 148 N.E. at 626).

In Matter of Richman v. Richman, supra, the court stated the rule as follows:

'It is the duty of the court to award custody to the parent who under all the circumstances, can more adequately serve the child's best interests. (People ex rel. Fields v. Kaufmann, 9 A.D.2d 375, 376, 193 N.Y.S.2d 789, 790) and best protect and preserve the health, welfare, education and well-being of the infant.' (citing cases) (Id. 32 Misc.2d at 1091, 227 N.Y.S.2d at 44).

Plaintiff contends that throughout the marriage she has always taken care of the children from the time they were born without the aid of a nurse or governess. This includes, and is not limited to, the daily routines of raising children and running a household.

Plaintiff further argues that defendant is deeply involvedwith his professional endeavors, will undoubtedly be unable to raise the children without the services of a third party, whether a relative, hired housekeeper, or governess. To award custody to the father in the instant case is tantamount to awarding custody to the third party. Moreover, the fact that the father has greater means than the mother, although a factor to be considered, is not controlling; the court may require the father to provide the mother with sufficient funds to raise the children properly. Although the courts take into account the expressed preference of a child of sufficient age and understanding as to the parent in whose custody he wishes to be, this factor is also not controlling. The courts refuse to allow the child to be the sole judge of his own best interests; moreover, they have recognized that a child's expressed preference can be induced, coaxed or otherwise influenced.

Defendant contends that plaintiff, by her conduct, has attempted to destroy and prevent any fatherly relationship of the defendant with his children; however, defendant if awarded custody would agree to and encourage liberal visitation rights to the plaintiff.

Defendant argues that he is better fit to have custody of the children in that the children have been happiest when with the defendant rather than the plaintiff; when they were exposed to the environment created by the defendant, his associates and his lifestyle, rather than that of the plaintiff; in that the children's growth and development intellectually, morally and psychologically have been enhanced more when exposed to the defendant and the environment created by him rather than that of the plaintiff.

Defendant further argues that both children love and respect defendant, desire to live together with defendant and defendant is better able to care for and maintain them and give them a wholesome family upbringing.

The court is convinced that both parties exhibit genuine love and affection for the children. Neither parent has been neglectful of their parental duties, nor in any way can be characterized as being an unfit custodian of the children.

However, from all the evidence before the court, it has been clearly established that the best interests of the children would be served if permanent custody is awarded to the one parent that appears to more adequately satisfy the emotional and cultural needs of the children.

It is the judgment of this court that permanent custody of both infant issue is awarded to the father, Dr. Lee Salk, as it is the opinion of this court, that he is the parent that can best nurture the complex needs and social development of these children.

The 'past conduct of the parents relative to their marital obligations is a factor which may not be disregarded in determining which parent will provide the better home.' Sheil v. Sheil, 29 A.D.2d 950, 289 N.Y.S.2d 86.

The courts have generally taken the position that it is not in the best interests of the child to award custody to a parent, whether mother or father, if such action is tantamount to awarding custody to a grandparent or a third party. Hoffmann v. Hoffmann, 224 App.Div. 28, 229 N.Y.S. 489 (1928); In re Earle, 26 A.D.2d 897, 274 N.Y.S.2d 429 (1966); Miles v. Liebolt, 230 N.Y.S.2d 342 (1962); F.F. v. F.F., 37 A.D.2d 893, 325 N.Y.S.2d 291 (1971); Contra, People ex rel. Wasserberger v. Wasserberger, 42 A.D.2d 93, 345 N.Y.S.2d 46 (1973), aff'd mem. 34 N.Y.2d 660, 355 N.Y.S.2d 580 (1974); People ex rel. Glendening v. Glendening, 259 App.Div. 384, 19 N.Y.S. 693, aff'd mem., 284 N.Y. 598, 29 N.E.2d 926 (1940).

The evidence indicates that the defendant has adjusted his schedule so that his professional commitments...

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2 cases
  • Alberto B v. Rosa O
    • United States
    • New York City Court
    • November 18, 1979
    ...clearly dictated by the best interests of the child. In re Guardianship of L., 75 Misc.2d 305, 348 N.Y.S.2d 46; Salk v. Salk, 89 Misc.2d 883, 887-888, 393 N.Y.S.2d 841, 843-844 and cases cited therein. There is no evidence here to indicate that the best interests of this child justify such ......
  • La Macchia v. La Macchia
    • United States
    • New York Supreme Court — Appellate Division
    • December 4, 1978
    ...would best be served by placing custody with the mother (cf. Matter of "FF" v. "FF", 37 A.D.2d 893, 325 N.Y.S.2d 291; Salk v. Salk, 89 Misc.2d 883, 393 N.Y.S.2d 841). It has been brought to the attention of the court that the mother has heretofore failed and refused to comply with that port......

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