Ahrenfeldt v. Ahrenfeldt — 4 Sarat. Ch. Sent. 493

Majority

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E. Ahrenfeldt v. C. Ahrenfeldt.

Dec. 10, 23, 1846 :

January 9, 1847.

Headnote

Where a limited divorce is decreed in favor of the wife against the husband, the custody of their children when of tender years, will usually be given to the wife. The future welfare and happiness of the children is, however, entitled to the highest, if not paramount regard.

Therefore, where there was but one child, a daughter, whose worldly prospects were mainly dependent upon her father ; the court, after such a divorce, on the child’s becoming ten years of age, directed a scheme to be framed, by which she was to be placed in a ladies boarding school, under the especial charge of the mistress of the school, to be under the care of her mother, and the latter to have as much of her society as would be compatible with her situation as a scholar; with liberty to her father to visit her, and enjoy her society, in a manner to be prescribed.

This case came before the court, on the petition of the defendant, and a cross petition on the part of the complainant; which with the papers referred to, exhibited the following facts.

By a decree made in the cause, by the Hon. Murray Hoffman, Assistant Vice-Chancellor, September 16th, 1840, a separation from bed and board was granted in favor of the complainant, against her husband, the defendant, on the ground of his abandonment and neglect to provide for her support; and the custody of two daughters, the only children of the parties, was committed to the wife. (See the case, reported in 1 Hoff. Ch. R. 47, 497.) The decree directed the husband to pay to the wife for alimony, five hundred dollars annually, and two hundred and fifty more, for the support of the two children, who were both of tender years. He was also to give security for the payment of these sums.

In January, 1845, on the petition of the wife and the report of a master, the allowance for the children, was increased to four hundred and fifty dollars annually.

In August, 1846, Anna, the eldest daughter died, and at the date of the defendant’s petition, the surviving daughter, Frederica, was ten years of age. The petition stated, that she was now of sufficient age and health, to entitle her father to her cus

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tody. It prayed for such custody accordingly, and that he might be exonerated from, paying the sum ordered for the maintenance of the children.

On the other hand, the complainant presented a petition, praying for an increase of alimony, and for security .to be given pursuant to the decree. She also produced affidavits made by herself and several other persons, to the effect that the defendant had become worth three times as much as he was in 1840, and was engaged in a large and prosperous mercantile business. That her daughter’s constitution was slender and delicate, and required the care and attention of a mother.

The defendant alleged, that his wife was alienating the feelings of his daughter from him. That he was desirous of taking her to Germany to visit his relatives, and he offered to give security to restore her to the city of New York in a year.

It appeared that the daughter boarded with her mother, in a private boarding house, and attended a school for young ladies in Fourth street, in this city. A variety of propositions and plans for her custody and disposition, were pressed by the respective parties, which it is deemed unnecessary to recapitulate.

H. Nicoll, for the defendant.

J. Anthon, for the complainant.

I do not think that the defendant under the circumstances, should pay any less alimony for his wife and surviving daughter, than that heretofore paid during the life of his daughter Anna. The allowance to the wife should be increased to six hundred dollars, and the daughter’s allowance will be $350 annually. And it is perfectly reasonable that the defendant should give the security for the payment of these sums, which was directed by the decree.

The most interesting and difficult question, relates to the custody of the daughter, and a suitable provision for her parents intercourse with her.

The decree in the cause establishes, that the present unhappy situation of this family, is the fault of the husband. It is there

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fore, not an undue punishment to him, that his fault should deprive him of the custody of his daughter; while it would be cruel to the unoffending wife, to add to her misfortune, the deprivation of the society of her only child.

At the same time, the future welfare and happiness of the child, is entitled to the highest regard, if not to paramount consideration. Her worldly prospects in life, are mainly dependent upon her father, and it is not to be disguised, that there is great danger from, the existing state of things, that his natural love and regard for her, may by degrees become weakened, and be followed by alienation and estrangement.

The daughter is now of a suitable age to be placed at a boarding school, under the especial charge of some lady of character; and while I cannot assent to any plan which will deprive her mother of her care, or of her society, so far as is compatible with her position in a school, yet I am persuaded that a scheme may be framed upon that position, which will enable her father to visit her with more freedom, and with more advantage to her cherishing due respect and affection for him, than can be afforded in her present situation.

I will, therefore, direct a reference (at the defendant’s expense,) to a master, to take from the defendant the requisite security for the payment of the alimony ordered for the wife and daughter; and to frame a scheme for placing the latter as a permanent, boarder in some female school in this city, on the footing above mentioned, and to settle the manner in which the defendant shall be permitted to visit her and enjoy her society.

The master will also designate a suitable school, and will report whether any further sum ought to be paid by the defendant, for the support, maintenance, and education of the daughter, beyond the $350, in consequence of placing her at such school. And he will also report any other facts or suggestions, that he may deem appropriate.

His report as to the whole matter referred, will be presented at a motion day for confirmation. But he may make a separate report as to the security for alimony, which may be confirmed by an order of course.

The defendant must pay the complainant’s taxed costs on

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these applications, and must furnish to her counsel a sufficient ■ sum for his attendance on the reference.

All other questions and directions will he reserved.^[1]

(a) (a) The defendant appealed from this order, and it was affirmed in November, 1847.