reversing original order denying all separate maintenance where husband able to pay and wife’s conduct adversely affected her ability to be gainfully employed
How later courts described this case
- reversing original order denying all separate maintenance where husband able to pay and wife’s conduct adversely affected her ability to be gainfully employed
Written by the judges who cited it.
The opinion
HOOD, Chief Judge
(dissenting).
I must dissent and the basis for my position requires some statement of the factual background of the case. The parties were married in 1944; a daughter was born to them in 1951; and they separated in 1958, I do not think it is accurate to say, as the majority opinion does, that the husband left the wife for no justifiable cause. It is true that the trial court, in denying his counterclaim for a divorce on the ground of constructive desertion, found that the conduct of the wife did not constitute a basis for constructive desertion; but the court also specifically found that the parties voluntarily separated on January 27, 1958. At the same time the trial court found that the husband was entitled to custody of the child.
After the voluntary separation in 1958, the wife, who had been employed throughout the married life except for a period after the birth of the child, continued to work and support herself until the latter part of 1960.
In 1961 she brought the present action for maintenance and custody of the child, alleging she was without regular employment and was unable to support herself. After a full hearing over a period of several days the court granted the wife temporary support in order that she might undergo a necessary operation and then regain employment. This support extended from January 29, 1962, until May 31, 1962.
*628 From the entire record I think it is obvious that the court terminated the wife’s support for three basic reasons: (1) The wife was able to support herself and did not require support from her husband; (2) regular employment and self-support by the wife would be far more beneficial to her than would be support from the husband; and (3) to require the husband to support the wife would result in the child being deprived of advantages most essential to her well-being. I shall elaborate only on this third reason.
I do not agree with, and I think the record does not support, the statement in the majority opinion that the husband is financially able to contribute to his wife’s maintenance arid to provide for his daughter. He must provide a home for himself and his daughter and meet all their living expenses. He has been sending the child to an excellent private, and necessarily expensive, school and all of the witnesses, including the wife herself, agree that this is for the best interest of the little girl. To maintain the home, meet the living expenses and pay for the schooling of the child requires practically every cent of his salary. If he must contribute to the wife, then the home life or schooling of the child must suffer. In short, he can maintain a home for himself and the child but he can’t maintain that home and another home for the wife.
I find no abuse of discretion in the order of the trial court and I think it should be affirmed.