Opinion
04-06-1893
OLCOTT v. OLCOTT.
Wm. D. Edwards, for complainant. Willard Fisk, for defendant.
Bill by Charles A. Olcott against Fanny A. Olcott to obtain a divorce. Bill dismissed.
Wm. D. Edwards, for complainant.
Willard Fisk, for defendant.
GREEN, V. C. The developments of this trial clearly show that the chief cause of the disagreement of these parties has been the interference of their respective parents. Left to themselves, I have no doubt they would be living together happily to-day. While this conclusion explains the situation, it furnishes no legal excuse for either neglect or separation. The legal duty of the husband was to his wife, irrespective of the suggestions or wishes of his own parents. The wife's duty was to the husband, and she should, if necessary, have acquiesced in his wishes with reference to her mother's presence, not only in fact, but in a way which would not have subjected him to mortification and annoyance. Mrs. Olcott left her home on the 12th of July, 1890, with the belief that her children, a boy of some four years, and a little girl under two years of age, had been taken away from her by her husband's mother, with his co-operation and consent. In ascertaining the true character of her departure from her home, it is immaterial whether she was correct in this belief or not, for we are seeking to determine what her motive was, and that can only be accurately ascertained by finding oat what belief incited her action. That such belief had some foundation in fact is evidenced by the manner in which these children of tender years were taken by their grandmother, and which she herself describes; and its sincerity appears from the fact that such act was made the basis of an application to the chancellor, initiated that day, for a writ of habeas corpus against her husband and father-in-law for the custody of the children, and by which, after a contest carried on in certainly no friendly or conciliatory spirit, the children were awarded to the custody of the mother. This condition of mind and belief, connected with other circumstances which I deem it unnecessary to consider in detail, but which in a general way may be stated as follows: That the house, which belonged to the husband's mother, furnished almost entirely with the furniture of Mrs. Olcott's mother, had been peremptorily required to be dismantled by the immediate removal of all her furniture therefrom; her husband's isolation from her society and companionship while in his own house; his constant visitation, without even extending to his wife the courtesy of an invitation, to his parents' home; the attempted estrangement of the children; their being allured from her by more enticing entertainment; their absolute removal to the grandparent's house, with the crib and clothes, creating the idea of permanency, and following almost immediately the demand for the removal of all the furniture from her home, —go very far to excuse, if they would not, indeed, justify, Mrs. Olcott in leaving the house on the morning of July 12th, without any intention of immediately returning to it or to her husband.
This suit was commenced on the 21st day of July, 1892, nine days after the expiration of the two years from the time defendant left the house,—the statutory limit,—and the desertion by defendant of complainant must be found in some act of hers either on the 12th of July, 1890, or between that time and the 21st day of the same month. I do not find it in the circumstances attending her departure from her home under the condition of affairs which then existed, and under the belief which she then entertained. The habeas corpus proceedings to recover the possession of her children were instituted by her on the very day she left her husband's house, and I think it was but natural that on her return that evening she should have gone to Mr. Cooley's, where her mother resided. The surrender of the children to her was contested by the husband at every step, and the whole story of their family discord and trouble was publicly aired by the investigation. During its continuance there is no pretense that the complainant made any effort to reconcile his wife, or did anything to put a stop to the unseemly strife that had been instituted over the custody of her little children. The order of the chancellor ordering the surrender of the children to their mother was made on the 24th day of July. Her continued separation during the time her husband was remorselessly resisting her efforts to obtain the custody of her children cannot be considered as obstinate. I do not see in the conduct of the defendant acts committed at any time on the 12th day of July and up to the 21st of that month which come within the definitionof willful and obstinate desertion. But, if it is true that she deserted her husband on the 12th of July, or within the nine days thereafter, is the complainant entitled to relief? In order to this end, it must appear by the evidence that his wife's continued absence was against his sincere desire, and that he has not acquiesced in the separation and accepted it as satisfactory. Herold v. Herold, 47 N. J. Eq. 210, 20 Atl. Rep. 375; Broom v. Broom, 47 N. J. Eq. 215, 20 Atl. Rep. 377, affirmed 49 N. J. Eq. 347, 25 Atl. Rep. 963; Chipchase v. Chipchase, 48 N. J. Eq. 549,22 Atl. Rep. 588, affirmed 49 N. J. Eq. 594,26 Atl. Rep. 468. On her return from her lawyer's to commence the habeas corpus proceedings, she went to stay at the Cooleys, where her mother was boarding,—a house within half a mile of the husband's home. He, in the pursuit of his business as a physician, constantly passed this house, and, while occasionally stopping to see his children, who had been returned to the mother, does not pretend that on any occasion did he stop to see his wife, or seek from her any promise or consent to return or to receive him as her husband. The furniture had all been taken out of the house, and, while he says he refurnished it immediately, he does not say that he ever told his wife he had done so, and she expressly says that she did not know, until she heard it upon the trial, that new furniture had been placed therein. He seeks to establish this part of the case by her repeated refusal to his public request to go back to her home and live. I am not prepared to say that she would not be entirely excusable in refusing to return and live under the surveillance of his family, and subject to the unpleasantness, if not indignity, that she had previously experienced under similar circumstances. Be that as it may, these various efforts of his amount to nothing, unless they were sincerely made. If they were only empty words, for the purpose of eliciting a reply as the foundation of his suit, this court will not give them much weight. It is noticeable that these different requests date from an interview or conference had between the complainant and a Mr. Willis, who was attached to Gen. Catlin's law office in Brooklyn. A husband who, by some unfortunate occurrence, had become separated from his wife, to whom he was still attached, and who, after the excitement—possibly anger— attendant on the separation, had in cooler moments formed a sincere desire for reconciliation, would naturally seek that result in a private interview with his wife, when they could talk over the situation calmly and dispassionately. The complainant did not adopt this plan, and although on several occasions he went to the house to see the children, both while living at Cooley's and while living at Caldwell, he does not pretend that on any occasion did he make the slightest allusion to his wife's returning to him, until he went therewith a witness; and it is remarkable that on one of the first of these occasions the witness was his lawyer friend, Mr. Wills. Instead of then, in a conciliatory and pleasant manner, discussing the unpleasant present condition of affairs, and suggesting their discontinuance by her return, he postponed all allusion to the matter until he was about leaving, when he blurted out, without any apparent connection with his former conversation, the remark, "Fanny, are you ready to live with me at the home that I have already tendered you?" This language was repeated, substantially in the same way, when Mr. Wills again accompanied him, and on another occasion with Mr. Frank Olcott, and on another occasion with Mr. Napier. Without going into the matter in detail, I am convinced that there is nothing in the evidence to show any sincere desire on his part to effect a reconciliation, nor in these different interviews any evidence that the separation was not entirely satisfactory to his feelings and wishes. This matter culminated, however, in a correspondence between Mr. Fisk as her counsel and himself, which puts any doubt in the matter at rest. She says in her testimony that she was always ready and willing to go with him to any home which he might make, (meaning, I suppose, that she was not willing to return to the home at Greenwood Lake to be there under the supervision of her husband's family.) As to whether this was the case or not would seem to be the purport of her counsel's inquiries by this correspondence, but any information which was sought was refused, and the whole matter stands, as suggested before, simply as an attempt to manufacture evidence to be used in the trial of a cause to relieve the case of the appearance of his having acquiesced in the separation.
The bill should be dismissed.