Tausik v. Tausik

• Decision Date: 17 September 1962
• Citation: 38 Misc.2d 11,235 N.Y.S.2d 776
• Parties: , 38 Misc.2d 24 Adolph TAUSIK, Plaintiff, v. Helen Tuck TAUSIK, Defendant. Adolph TAUSIK, Plaintiff, v. Helen Tuck TAUSIK, otherwise known as Helen Tuck Grossman, Defendant. Adolph TAUSIK, Plaintiff, v. Helen Tuck TAUSIK, also known as Helen Tuck Grossman, and United States Fidelity and Guaranty Company, Defendants.
• Court: New York Supreme Court

Page 776

235 N.Y.S.2d 776

38 Misc.2d 11, 38 Misc.2d 24

Adolph TAUSIK, Plaintiff, v. Helen Tuck TAUSIK, Defendant.

Adolph TAUSIK, Plaintiff, v. Helen Tuck TAUSIK, otherwise known as Helen Tuck Grossman,

Defendant.

Adolph TAUSIK, Plaintiff, v. Helen Tuck TAUSIK, also known as Helen Tuck Grossman, and United States Fidelity and Guaranty Company, Defendants.

Supreme Court, Special and Trial Term, New York County Parts VIII and XXI.

Sept. 17, 1962.

Supplemental Opinion Dec. 11, 1962.

[38 Misc.2d 25] Jesse Perlmutter, New York City (Irving I. Erdheim and Fred Lichtblau, New York City, of counsel), for plaintiff

Goldstone & Wolff, New York City (Sidney A. Wolff and Joseph F. Seminara, New York City, of counsel), for defendants.

MATTHEW M. LEVY, Justice.

These three actions were directed, by separate orders at Special Term, to be tried together. Affirmance by the Appellate Division of the second order resulted in the third action being joined for trial before me after the commencement of the trial of the other suits. It was stipulated that the proof presented would, where relevant, apply to all three cases.

The plaintiff in these actions is the husband. His wife is the principal defendant. By such actions, the husband seeks (1) a separation on the grounds of abandonment and cruel and inhuman treatment; (2) a declaratory judgment determining that, as against his wife, he is the sole owner and entitled to possession of the furnishings located in the cooperative apartment owned by him and lived in as the matrimonial home of the parties; and (3) damages for the alleged wrongful withholding of possession and the use and occupancy of the cooperative apartment by the wife.

In his action for damages, the plaintiff has joined as a party defendant a surety company on two bonds which the defendant-wife was required to post in connection with the litigation between the parties involving possession of the apartment. Both defendants answered separately, denying material allegations and asserting similar affirmative defenses. These allege, in substance, that the defendant-wife was entitled to remain in the cooperative apartment without any obligation therefor to the plaintiff. In addition thereto, the defendant-wife's answer in this action contains three counterclaims. In the first, she asserts ownership of the furnishings and furniture, with minor exceptions. In the second, she seeks damages for the alleged wrongful retention by the plaintiff-husband during the pendency of this litigation of such furnishings and furniture. In her third counterclaim, the defendant-wife seeks to recover from the plaintiff-husband the sum of $15,000 allegedly expended by her for necessaries following the plaintiff's departure from their marital abode.

In her answer to the separation action, the defendant-wife has set forth two counterclaims for separation. They are not before me for disposition, having heretofore, on motion of the plaintiff, been stricken. The wife's defenses, however, of abandonment and of cruel and inhuman treatment by the husband, also pleaded, remained for considered by way of trial.

In the action for a declaratory judgment, the wife's answer pleads five affirmative defenses. These allege, in substance, (1) that the court should decline jurisdiction of the action because of the pending matrimonial suit; (2) that the plaintiff has an adequate remedy at law; (3) that the defendant is solvent and able to respond to the plaintiff in damages; (4) that the defendant asserts no interest in some of the household articles--which is also pleaded by way of a partial defense; and (5) that the plaintiff-husband has abandoned the defendant-wife.

The complaints, denials and defenses and remaining counterclaims culminated in a vigorously contested trial--which lasted many days--of sharply disputed facts and inferences and which resulted in numerous proposed findings of facts and conclusions of law, all of which have been passed upon by me. In this opinion, therefore, I have touched only upon several of the highlights in point of fact and of law.

The record establishes that the plaintiff, now some seventy years old and the defendant, approximately sixty-three years of age, were married in the State of Connecticut on July 21, 1954. Each of the parties had enjoyed the pleasures and endured the vicissitudes of prior marriages. The wife was a widow when she married the plaintiff. He had been married twice prior to his present venture, and had been divorced on each occasion. The parties have no issue of the present marriage, but each has adult children with prior spouses. On the economic plane, the husband might properly be called wealthy, the wife has independent means.

For the first four years of their marriage the parties resided in an apartment at 301 East 21st Street, New York City. The building in which this apartment was located is owned by the plaintiff. In the latter part of 1958, he purchased a cooperative apartment at 110 East 57th Street, New York City, and moved into it with the defendant in or about November, 1958. Shortly thereafter, the parties began to suffer marital difficulties.

The plaintiff was not an easy man to live with. His was a dominating personality. Some of his conduct, as proved upon this trial, might certainly be characterized as inconsiderate--indeed, cantankerous--and not in consonance with the tender affection one's wife is entitled to expect from a truly loving husband. On the other hand, an attachment by the husband to his married daughter, to which the wife objected--ostensibly for the benefit of the husband's psychologic and psychiatric well-being, but actually (or, at the least, ambivalently), because of the In any event, husband and wife decided--separately and together--to live apart, and, from then on, each began and continued to jockey for what was deemed, by him and her respectively, as the best legal position. In this contest, the husband had the benefit both of experience and of counsel.

wife's guarded feeling of jealousy--did not receive the understanding on her part that the circumstances warranted. And the husband's sporadic fits of temper, occasioned in part by an already disturbed emotional and mental state on his part--a condition adequately disclosed to the wife prior to the marriage--did not receive the understanding or forgiveness which a woman is bound to give to one whom she takes as her mate for better or for worse. The parties, individually and jointly, soon came to recognize that they could not make a go of their marriage.

On January 4, 1959, while the parties still jointly occupied the co-operative apartment, the defendant-wife wrote the plaintiff a note which reads as follows:

'110 East 57th Street--

'January 4th, 1959

'Dear Adolph--

'Since I have decided to live apart from you, I appreciate your allowing me to remain in this apartment until I find a permanent place to which to move. I shall try to accomplish this as quickly as possible and, in any case, I shall not stay any longer than two months.

'It was my suggestion that you live at your 21st St. apartment during this period and therefore I am enclosing my check for the rent for January for the Dorchester apartment.

'Sincerely,

'Helen

'Check enclosed'

This writing is used by the plaintiff in support of the contention that it was the decision of the defendant-wife, and hers alone, to leave him and to live thereafter apart from him, and, in consequence, it is urged by the husband that the proof is convincing that his wife abandoned him. I do not agree. The language of the note and the circumstances surrounding its writing have made it plain to me that, at least in respect of the marital relationship, ¹ the plaintiff may have deemed himself successful in the legal maneuver of procuring the writing that he did. But it clearly appears from the credible proof adduced upon On the fifth day after the husband received the written request of January 4, 1959, that he leave the 57th Street dwelling, he did so. But, contrary to the wife's contention, I do not conclude that he thereby abandoned her. The separation commenced and was continued entirely by mutual consent. This is evidenced by the fact that, immediately after the writing of the note, the implementation by the wife of the agreed-upon plans for a separation was carried on apace. Among the indicia of willing consent on her part were the purchase by her of blankets and linens for her husband's use at the 21st Street apartment, the removal by her of her clothing and other personal possessions from the latter place, and the delivery to him of her personal check in payment of a month's carrying charges on the cooperative apartment which she was to occupy alone.

the trial that the definitive decision to separate was a mutual one, and that the wife took no unilateral action in that regard to which the husband truly objected.

It is true that, thereafter, the husband made a number of requests upon his wife for the resumption of their marital relationship, and that these proffers were continuously spurned by her. The husband now contends that thereby he was abandoned. No doubt it is that, were the proposals made in good faith and were the wife's refusals to accept them entirely unwarranted, an abandonment would result on her part sufficient to entitle him to a judicial decree of separation (Aghnides v. Aghnides, 308 N.Y. 530, 532, 127 N .E.2d 323, 324; Solomon v. Solomon, 290 N.Y. 337, 340-341, 49 N.E.2d 470, 471; Grossman, New York Law of Domestic Relations §§ 489, 492).

But, throughout, the plaintiff has completely ignored his wife's objections to living in the same building in which his daughter resided. Whether or not, as urged by the defendant, it was 'psychologically bad' for the plaintiff to live in close proximity to his daughter is not to be determined as a matter of isolated medical consequence (although, on that score, I am inclined to agree with the...