Palese v. Palese

¶1dissents and votes to remit the aetion to the trial court for a hearing limited to the financial condition of the parties, with the following memorandum: The majority justifies the reversal of a clear ease of abandonment and nonsupport on the ground that plaintiff violated her marital obligation by “ demanding that defendant assent to an unreasonable condition as a term of their relationship ”. One searches the record in vain for such a demand. Defendant told plaintiff that if she did not “ chase ” their son out of the house, defendant would “go away, and you don’t see me no more.” Plaintiff was asked if she wanted to chase her son out of the house. She replied, “No, I’m the mother. I suffer for my son.” That is the extent of the “ demand ”. Defendant was the sole owner of the marital home. He was entitled to eject his son from the house but he was not entitled to have his wife do it for him. Had the relationship between plaintiff and defendant been a blissful one, it would nevertheless have been an extremely distressing task for her to ask her son to leave the house. Their relationship, however, was somewhat less than blissful. Defendant lived and worked in New York City five days in each week, returning home to Suffolk County for the week ends only. He was frequently intoxicated and argumentative. The son too was away a great deal, returning home on week ends or when his mother needed help. Plaintiff, a woman in her mid-sixties, lived alone in the house except for these visitations. I eannot agree that the “ duty of fidelity between husband and wife ” required this plaintiff under these circumstances to assist defendant in forcing his son out of the house at the risk of being abandoned and of being left without support by reason of her refusal. She made no demand that the son remain in the house. She made no threat to quit the marriage if the son were ousted. She merely refused to do what defendant as the sole owner of the property should have done himself. That refusal did not justify an abandonment and failure to support. The record is insufficient, however, to establish the financial conditions of the parties. Accordingly, I would remit this action to the trial court for a hearing on that issue only and otherwise affirm.