Schine v. Schine

• Decision Date: 13 April 1971
• Citation: 36 A.D.2d 300,319 N.Y.S.2d 967
• Parties: Patricia C. SCHINE, Plaintiff-Appellant-Respondent, v. Richard SCHINE, Defendant-Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 967

319 N.Y.S.2d 967

36 A.D.2d 300

Patricia C. SCHINE, Plaintiff-Appellant-Respondent, v. Richard SCHINE, Defendant-Respondent-Appellant.

Supreme Court, Appellate Division, First Department.

April 13, 1971.

Hyman Krugman, New York City, for plaintiff-appellant-respondent.

Richard H. Wels, New York City, of counsel (Stephen J. Schaeffer, New York City, with him on the brief; Sulzberger, Wels & Marcus, New York City, attorneys) for defendant-respondent-appellant.

Before CAPOZZOLI, J.P., and McGIVERN, MARKEWICH, KUPFERMAN and STEUER, JJ.

McGIVERN, Justice.

The parties were married in September, 1960, at a sumptuous wedding. She was quite young, not more than nineteen. Both also, it would seem, were spoiled and undisciplined. Previously, he had had a psychiatric involvement, and was so treated periodically throughout the marriage. Yet, the marriage, blessed by two children, rocked along, marked by an expansive life-style, far beyond his overt income. Marked also by not infrequent skirmishes, of not assaults, by him. Faults of immaturity and of extravagance she had aplenty. Yet, in addition to his share of tantrums, he had some disenchanting idiosyncracies: like going to bed with a urinal, garbed in a sweat suit, and cowled like a monk, to boot. He also, it seems, had a penchant for firearms; at one period he experienced 'day-night' reversals, and at another, attempted suicide. Not altogether an easy man to live with it might appear.

Come the summer of 1966, and he, for business reasons, he claims, was, for the most part, living unluxuriously in New York City, she in Great Neck, the marital abode, a 16-room house, with the children. It also seems he expected her to join him, connubially, in New York, every Friday evening, then she to return to Great Neck alone. But on August 12, 1966, she refused to stay, insisting on returning to the children, at that time ill; and one of whom required hospitalization. She offered to remain if she could arise early in the morning so she could take the oldest boy to the hospital. But that he did not like. It would disturb his rest. So the twain parted, his final words: 'I'll see you in court'.

True to his purpose, he invited her to New York a few days later, to hold parley with the lawyer he had retained for divorce purposes. As she said: '* * * because he had been begging me for a divorce for many months before that'.

Meanwhile, or about that time, back at Great Neck, a housekeeper had lost a key to the front door. To quote her exactly: 'Yes, I losted my key'. And not unnaturally, and with common sense caution, she (the wife) changed the lock to that door, as a protective measure. After all, she was living alone there in the marital abode, with the children. He was, certainly most of the time, living separately in the city. But on September 3, 1966, after sojourning in Boca Raton, the scene of yet another residence, and putting the family possessions, including the wedding gifts, in storage, anticipating legal strife, he returned to the Great Neck manse, which he had rarely visited that summer. Although his key did not fit the lock, he was readily admitted. Words followed. In time, he removed his personal possessions.

On this foundation, the court has granted a divorce to the husband on the sole grounds of her culpable abandonment, cutting off the wife without a penny's alimony. We do not agree. To the contrary, we find the determination lacking in factual foundation and insupportable as a matter of law. In Matter of Lapenna, 16 A.D.2d 655, 226 N.Y.S.2d 497, appeal dismissed, 12 N.Y.2d 671, 233 N.Y.S.2d 463, 185 N.E.2d 903; Matter of Maiden, 284 N.Y. 429, 31 N.E.2d 889; See also, Diemer v. Diemer, 8 N.Y.2d 206, 210, 203 N.Y.S.2d 829, 832--833, 168 N.E.2d 654, 657.

If there was any 'abandonment', it was the other way around. He was the one who left with the Parthian shot: 'I'll see you in court'. At that time, he was not actually living with her anyway, favoring separateness in New York to the marital abode, with Great Neck fifteen miles away. And he never did return, neither that summer nor thereafter. But he did, previous thereto, and long before he discovered the changed lock (September 3, 1966), consult purposefully with an attorney, divorce in mind.

In sum, we cannot reconcile the finding of abandonment against her with any of the classical notions of what constitutes abandonment by a guilty spouse. See, In matter of Lapenna, Supra, p. 656, 226 N.Y.S.2d p. 499: 'Abandonment by a spouse is a voluntary departure or a living apart, without intention of returning, that is unjustified and without the consent of the other spouse, the separation being obstinate and hardened and one that would have supported a judgment of separation (Matter of Maiden, 284 N.Y. 429, 31 N.E.2d 889; Mirizio v. Mirizio, 248 N.Y. 175, 161 N.E. 461; Bohmert v. Bohmert, 241 N.Y. 446, 150 N.E. 511; Matter of Mead, 281 App.Div. 943, 119 N.Y.S.2d 579; Matter of Christesen, 277 App.Div. 893, 78 N.Y.S.2d 192; In re Buczek's Estate, (Sup.) 80 N.Y.S.2d 254; In re Weinberg's Estate, Sur., 75 N.Y.S.2d 138; In re Casey, Sur., 51 N.Y.S.2d 55)'. And the burden was on him to establish her abandonment. Matter of Rechtschaffen, 278 N.Y. 336, 338, 16 N.E.2d 357, 358.

In our view, the disposition under review represents an indiscriminate application of the 'dead marriage' theory, a theory not posed by the instant pleadings, a relief not prayed for, and not supported by the evidence. The Gleason case (Gleason v. Gleason, 26 N.Y.2d 28, 308 N.Y.S.2d 347, 256 N.E.2d 513) should be regarded in the setting of its own facts, to wit, a pre-1966 separation decree and in its own context (Domestic Relations Law Sec. 170, subd. (5)). Gleason does not purport to hold out mere incompatibility as a ground for divorce, nor has the Legislature. Indeed, although the plaintiff-wife commenced a suit in separation on March 24, 1967, it was not until August 1968, that the notion of divorce for her abandonment came into the litigation by way of an amended answer to the husband's pleadings. The trial court recognized the inapplicability of the 'dead marriage' theory, when at the conclusion of the trial, in colloquy he said such a characterization 'isn't going to enter into my decision'. And he exhorted the parties sensibly to settle the case, implicitly recognizing that the defendant, as the mature scion of a wealthy family, had, as a husband, voluntarily assumed some financial obligations to the maiden he married ten years ago, and the general support of whom he had undertaken.

Now, as a result of the trial court's decision, she is a guiltily divorced matron, in suburbia, with two children, seemingly ill-equipped, either by upbringing or by acquired skills, to earn her own living. And he is free of all obligations to her (Domestic Relations Law Sec. 236). See: Brownstein v. Brownstein, 25 A.D.2d 205, 268 N.Y.S.2d 115; Sacks v. Sacks, 26 A.D.2d 575, 271 N.Y.S.2d 358; Kall v. Kall, 35 A.D.2d 943, 316 N.Y.S.2d 943. For cases of like tenor: Smith v. Smith, 60 Misc.2d 692, 303 N.Y.S.2d 193; Newburger v. Newburger (Sup.Ct., N.Y. Co., N.Y.L.J., p. 14, col. 1, December 30, 1968). The Trial Court, whose determination of abandonment by plaintiff, the dissent would affirm by its own fact finding, 'ties its own hands'. See, McKinney's Cons. Laws of N.Y., Vol. 14, p. 137 (Siegel Commentary).

As we view it, this husband has been erroneously permitted to seize upon the change of a single lock, done for good reason, as a pretext for his already formed 'irrevocable', 'definite', 'definitive' wish not to live with his wife. Contrariwise, we defer to and we agree with the Trial Court's finding that the plaintiff-wife has not sustained her own burden of proof, vis-a-vis her own separation action for cruelty, by a fair preponderance of the credible evidence. Pearson v. Pearson, 230 N.Y. 141, 129 N.E. 349; Rios v. Rios, 34 A.D.2d 325, 311 N.Y.S.2d 664. Thus, she is relegated, as a losing wife, to the protection of Domestic Relations Law Sec. 236. Brownstein v. Brownstein, Supra.

Accordingly, the judgment appealed from is modified on the law and the facts, so as to reverse said judgment in so far as it awards a divorce to defendant-husband on the grounds of plaintiff-wife's alleged abandonment of him, and defendant's counterclaim seeking a divorce or alternatively a separation is dismissed on the merits; and the first, second, third, fourth and fifth decretal paragraphs of the judgment appealed from are stricken; and in so far as the judgment dismissed the plaintiff's first, second, third and fourth causes of action, judgment is affirmed, and the matter is remanded to Trial Term for a determination by a Justice, other than the one who tried the main case, of the question of suitable support for the wife and children as justice requires; and except as so modified, the judgment is affirmed, without costs and without disbursements.

Judgment, Supreme Court, New York County (Lane, J.), entered on ...