Bunim v. Bunim

83 N.E.2d 848, 298 N.Y. 391

• Court: New York Court of Appeals
• Decided: January 13, 1949
• Status: Published

Opinions

On the trial of this divorce suit the wife admitted numerous deliberate adulteries (with a man who was married and had children), attempted to rationalize and justify those adulteries, denied any repentance therefor, committed perjury in swearing to denials in her answer (see Civ. Prac. Act, § 1148), and, as found by both courts below, testified to a deliberately false story as to consent by plaintiff (a reputable and successful physician) to the adulteries. With all that in the record, custody of the two children of the marriage (eleven and thirteen years old at the time of the trial) has been, nonetheless, awarded to defendant.

There is an affirmed finding below that the husband is a fit and proper person to have such custody, and no such finding as to the wife, but a finding that u the interests and welfare of the children, the issue of said marriage, will be best served by awarding the custody to the defendant.” We see in this record no conceivable basis for that latter finding, unless it be the testimony of the two daughters that, though they love their father, they prefer to live with their mother. Unless that attitude of these adolescent girls be controlling as against every other fact and consideration (see, contra, People ex rel. Glendening v. Glendening, 259 App. Div. 384, affd. 284 N. Y. 598), this judgment, insofar as it deals with custody, is unsupported and unsupportable.

Of course, custody of Children is ordinarily a matter of discretion for Special Term and the Appellate Division (see Matter of Welch, 74 N. Y. 299; Kruczek v. Kruczek, 264 App. Div. 242, affd. 289 N. Y. 826; Harrington v. Harrington, 290 N. Y. 126, 130). But that discretion is a judicial discretion, not an uncontrolled one, and its exercise must have sound and substantial basis in the testimony. Therefore, there can be no valid exercise of discretion in a judicial direction which is opposed to everything presented to the court. We hold that there was here such abuse of discretion as to be error of law, with consequent jurisdiction to review,.and duty to reverse, in tbis court.

No decision by any court can restore tbis broken borne or give these children what they need and have a right to — the care and protection of two dutiful parents. No court welcomes such problems, or feels at ease in deciding them. But a decision there must be, and it cannot be one repugnant to all normal concepts of sex, family and marriage. The State of New York has old, strong policies on those subjects, strongly stated by the Legislature (see, for instance, Penal Law, § 100; Civ. Prac. Act, §§ 1147, 1161, 1170; Domestic Relations Law, § 8). Our whole society is based on the absolutely fundamental proposition that: “ Marriage, as creating the most important relation in life,” has “ more to do with the morals and civilization of a people than any other institution ” (Maynard v. Rill, 125 U. S. 190, 205). Defendant here, in open court, has stated her considered belief in the propriety of indulgence, by a dissatisfied wife such as herself, in extramarital sex experimentation. It cannot be that “ the best interests and welfare ” of those impressionable teen-age girls will be ‘ ‘ best served ’ ’ by awarding their custody to one who proclaims, and lives by, such extraordinary ideas of right conduct.

The judgment should be modified by striking therefrom the provisions thereof dealing with custody and support, and the matter remitted to Special Term for further proceedings not inconsistent with this opinion.