Betz v. Betz — 25 N.Y. Super. Ct. 694

Majority

p. 694

Babette Betz, plaintiff and respondent, vs. Charles Betz, defendant and appellant.

Headnote

1. An act of condonation, to be effectual, must be • one to which both husband and wife assent, and in which each participates. An unaccepted offer of the wife to return to the matrimonial bed is not,- of itself, a condonation, but only an expression of a willingness to condone.

2. The mere expression of a desire on the part .of the plaintiff to make an agreement with the defendant, whereby the injury shall be condoned at a future period, and on the latter’s assenting to and' performing certain conditions, is not an absolute condonation..

3. Tlie term “ condonation” necessarily includes that operation of the mind, evinced by words or acts, known as forgiveness ? the. free, voluntary and' full remission of a matrimonial offense. Unless accompanied by that operation of mind, even cohabitation without fraud or force, is insufficient to establish a condonation.

4. Where the offer of a wife to return to her husband was made for the purpose of obtaining a support for herself and her child during the pendency of the suit, and because tlie order of the court required her to do so, as a condition . upon which such support Was to be obtained; such support being intended by the court as a substitute for an {award of alimony during the progress of the suit, and being so accepted and acted upon by the wife; Held that this did not amount to a condonation.

(Before Barbour and Garvin, J.J.)

Heard June, 1864.

Appeal from an order made at special term.

Ed. Randolph Robinson, for the appellant.

Kapp & Goepp, for the respondent.

By the Court,

This is an appeal from an order denying the petition of the defendant for leave to put in a supplemental answer, in a suit for a divorce a mensa et thoro, for alleged cruelty and abandonment. The facts are as follows : After the commencement of the suit, and on the 21st of March, 1863, upon an application made for alimony pendente lite, the court directed, by its order, that “the plaintiff must offer to return to the society of the defendant, in case he shall provide a place for her support within a week from the making

p. 695

of this order; and, in case she does so, the defendant must provide such place and support; if she does not, the motion must be denied ; if she does, and he does not supply such place and support, there must be an order for his allowing her »$>8 a week, until the determination of- the cause, and $30 counsel fee.” The plaintiff, being quite poor, and having no means of support for herself and infant child, thereupon offered to the defendant, in writing, to return to his society on his providing a suitable abode and support for her, in accordance with the terms of the order. Seventeen days after this, the defendant notified the plaintiff that he had, in pursuance of the order of the 21st of March, and the offer of the plaintiff under the said order, provided a suitable place for her abode at No. 1258 Broadway, and also a suitable support for her at said house. The plaintiff .thereupon caused the proposed residence to be examined, and finding it, in her opinion, unsuitable, declined to reside there, and notified the defendant thereof.

The proposed supplemental answer simply avers that on the 25th of March, 1863, the plaintiff offered to return to the society of the defendant on his providing a suitable place of abode and support for her; that on the 11th of April, 1863, the defendant offered to and did provide a suitable abode and support for her, and offered to receive her back, and that she refused and still refuses to accept such offer.

The defendant claims that this offer of the plaintiff to return to her husband and live with him, was a condonation of the injuries complained of, and, therefore, constitutes a bar to further proceedings in the action. I am satisfied upon an examination of the authorities, that this position cannot be maintained. For, the proposed supplemental answer does not aver that the offer of the wife was accepted by the defendant, and it expressly states that his offer, which was not made until the lapse of seventeen days, and which appears from such supplemental answer to have been a distinct proposition on the part of the husband, entirely unconnected with the offer the plaintiff had previously made to him, was refused by her. There was no time, therefore,, when the minds of the parties met upon

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the offer on the one side to forgive, upon the specified conditions, and the acceptance of such forgiveness and the performance of those conditions by the other ; and an act of condonation, to be effectual, must be one to which "both husband and wife" assent, and in which each participates. An unaccepted offer to return to the matrimonial bed is not, of itself, a con-donation, but only an expression of a willingness to condone. In the case made by the supplemental answer, it was, at most, merely the expression of a desire on the part of the plaintiff to "make an agreement with the defendant whereby the injury should be condoned at a future period, and on the latter’s assenting to and. performing certain conditions. That was not condonation. (See 2 Bishop, 347. Popkin v. Popkin, 1 Hagg. Ecc. R. 766. Ferrars v. Ferrars, 1 id. 781, n. Quarles v. Quarles, 19 Ala. R. 363. Peacock v. Peacock, 1 Swab. & T. 183.)

Again: The term condonation necessarily includes that operation of the mind, evinced by words or acts, known as forgiveness ; the free, voluntary and full forgiveness and remission .of a matrimonial offense. Unless accompanied by that operation of the mind, even cohabitation without fraud or force, is insufficient to establish a condonation. (2 Bish. Mar. & Div. §52. D’Aguilar v. D’Aguilar, 1 Hag. Ecc. R. 773. Popkin v. Popkin, supra. Curtis v. Curtis, 1 Swab. & T. 192. Reese v. Reese, 23 Ala. R. 785.) In this case, it appears to iné, there is no evidence of an intention on the part of the wife to forgive her husband voluntarily, and to reinstate him in her affections, nor even to abandon her suit. But, on the contrary, it is quite clear that her offer to the defendant was made for the" purpose of obtaining support for herself and her child during the pendency of the suit, and because the order of the. court required her to do so as a condition upon which such support was to be obtained. It was intended by the court as á substitute for an award of alimony during the progress of the suit; and was so accepted and acted upon by the plaintiff.

. The proposed supplemental answer, therefore, would have constituted no defense; and, for that reason, the rejection of the petition Was proper. The order should be affirmed with costs.