Opinion
June 28, 1955.
Judgment unanimously modified, with costs, so as to (1) deny and dismiss defendant's first counterclaim for separation; and (2) vacate the provision therein placing the infant daughter in the custody of the defendant husband with certain rights of visitation to the plaintiff wife and, as so modified, affirmed. This would seem to be a case where the parties should submerge their personal animosities towards each other at least for the sake of making a home for their four-year-old son. The evidence here presented was not sufficient to sanction defendant's first counterclaim that he was abandoned by the plaintiff. When plaintiff left their home in December, 1953, it seems that she really believed that her husband had committed adultery. Upon the trial, she was unable to supply the necessary proof. Part of this inability was caused by the action of the corespondent in leaving the jurisdiction. Moreover, during the pendency of this action the defendant knew the whereabouts of the corespondent in the State of Utah and has corresponded with her. The conclusion having been reached that neither party is entitled to a decree of separation, suitable provision should be made for the custody and support of the child. This court finds that the welfare of the child will best be served by awarding custody to the mother. Pursuant to the provisions of section 1170-a of the Civil Practice Act, the custody of the infant is awarded to the plaintiff with suitable visitation rights to the defendant and the defendant is directed to pay $25 per week towards the support of the child. Settle order on notice.
Concur — Peck, P.J., Cohn, Bastow and Rabin, JJ.