Lowenstein v. Lowenstein

232 A.D. 569, 251 N.Y.S. 111, 1931 N.Y. App. Div. LEXIS 13887

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 24, 1931
• Status: Published

Opinions

McAvoy, J.

Defendant did abandon plaintiff in the sense that she left his abode. If she did so unjustifiably the judgment is correct. If she were so beset and maltreated that no reasonable woman would endure the continuance of her union with plaintiff, the judgment is erroneous. This is a fact matter and largely ought to be decided more readily by the trial court. But we discover his findings are so inconsistent that we may not follow him in his conclusions.

Our view of the record is that the defendant showed her right to leave the plaintiff by reason of misconduct of his which appears established by the proof and which plaintiff failed to convincingly controvert.. The judgment ought to have gone for defendant for a separation.

In finding that defendant was in all respects a devoted and careful 'mother of her children, and then awarding sole custody to the father we think there is obvious error. This, too, should be corrected by dividing custody each year equally. If the parties have preferences of time, let them agree; if they will not, the order to be settled on notice will make a provision for half yearly custody to each.

The judgment should be reversed, with costs, and judgment ordered for defendant for separate maintenance and custody to be awarded as indicated in opinion.

Merrell and Sherman, JJ., concur; Finch, P. J., and Martin, J., dissent.