Woodhouse v. Woodhouse — 89 A.D. 88

Majority

p. 88

Joseph S. Woodhouse, Appellant, v. Mary D. Woodhouse, Respondent.

Headnote

Decree of divorce giving the custody of the children to tile husband — not modified, while the wife is living with her paramour, so as to allow her to see them.

Where a decree of absolute divorce, obtained by a husband from his wife on the ground of the wife’s infidelity, awards to the husband the custody of the infant children of the marriage, an application made by the wife, while she continues to live with her paramour, for a modification of the decree in order, that she may be permitted to see the children of the marriage at stated times, should not he granted.

Appeal by the plaintiff, Joseph S. Woodhouse, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of July, 1903, amending a decree of divorce theretofore entered in favor of the plaintiff.

A. H. Hummel, for the appellant.

H. JD. Luce, for the respondent.

By a decree duly entered in this action the plaintiff obtained a divorce from his wife and he was awarded the custody of three

p. 89

infant children of the marriage. The decree was entered in October, 1901. The divorce was granted on the ground of the wife’s adultery with one Davis, with whom she is now living, thus continuing the illicit relations which were made the foundation of the judgment against her. In May, 1903, she made an application to the Supreme Court at Special Term to modify the decree so that she might be permitted to see the children at stated times, and her application was granted. From the order entered thereupon this appeal is taken.

We think the order should be reversed. Where the guilty wife continues her illicit relations with her paramour and leads an immoral and degrading life, there is no propriety in interfering with the judgment which has separated her from her children, nor should they be again brought under her influence in any way until she has given evidence of contrition and reformation. Were the defendant’s life now blameless a different view would be taken, but as it is we cannot allow such a precedent to stand as would be made by an affirmance of this order.

The order must be reversed, with ten dollars costs and disbursements, and the motion to amend the decree denied, with ten dollars costs.

O’Brien, McLaughlin and Laughlin, JJ., concurred; Van Brunt, P. J., concurred in result.

Order reversed, with ten dollars costs and disbursements, and motion to amend decree denied, with ten dollars costs.