#### Mary Blair Brokaw, Plaintiff, *v.*William Gould Brokaw, Defendant.

(Supreme Court, Nassau Special Term,

February, 1910.)

Alimony — Scope and amount of award"—Permanent alimony — Particular amounts.

Divorce — Causes for divorce or separation — Abandonment and failure to support — Definition and legal elements.

There may be an abandonment of a wife by her husband though he furnishes her, through a lawyer, with a weekly allowance for her support. "

*308Where a husband, soon after their marriage, manifests such jealousy of his wife as in a few months produces injury to her health and a condition of hysterical collapse and leads to a written agreement between them, in which the husband pledges himself not to molest her, he having theretofore indulged in a habit of forcibly breaking into her sleeping apartments at all hours simply to vindicate his right to enforce his wishes; and where, after protracted infelicities, he takes rooms at a hotel in Paris, other than the one in which their baggage had been left and to which his wife returned after a tour they had projected was abruptly broken off by a rupture between them, and serves a formal French notice upon her to resume cohabitation and return to him at his conjugal domicile; and where, after another reconciliation and another violent entrance to her apartments, in which his head is injured as the door is shut upon it, he goes off and leaves his wife, who gets back to America with the assistance of his brother-in-law; and where, after still another reconciliation, leaving his wife at their Long Island home, he goes to North Carolina and gives himself up to the surveillance of all her activities and to ceaseless inquisition, by mail and telegraph, until, angered by her entertaining over night a party of friends, he orders the house clo.sed, leaves his wife to find a place of abode, ignores her request to join her at his home, although he provides her with a weekly allowance for her support through a lawyer, held that. he has abandoned his wife and that she is entitled to a decree of separation against him.

Alimony is not based on a definite part of the husband’s estate or his yearly income but should be fixed with due regard to the station in life of the parties and the circumstances of their separation.

Action for a legal separation.

Griggs, Baldwin & Pierce (A. J. Baldwin and Charles G. "Signor, of counsel), for plaintiff.

Eugene L. B-ushe (John E. McIntyre and Edward-Weiss, of counsel), for defendant.

Putnam, J.

It is not necessary for the court, in declaring its decision, to review the twenty-four or more distinct charges set forth in the complaint, or the recriminatory matters pleaded in the answer or brought out during the hearing. Although the plaintiff was limited to the acts specified in the *309complaint, evidence has been received from the defendant’s side so widely as to cover nearly the entire history of the marriage relations of the parties to this action down to their final separation on December 15, 1908.

The law of ¡New York does not grant a separation for incompatibility, abusive epithets, capricious or arbitrary conduct, but allows it only on specified grounds. The courts intervene to separate the parties when one of them requires protection from the other, or when .one has forsaken cohabitation with the other, or when the husband fails to support the wife. The Code (§ 1762) distinguishes acts of cruelty and inhuman treatment from such conduct as may render it unsafe and improper to continue to cohabit. The refusal to cohabit is termed an abandonment. In this case, Mrs. Brokaw seeks a legal separation on the three grounds of cruelty, conduct rendering it unsafe and improper to live with her husband, and an abandonment about December 15, 1908.

The investigation of these marital differences has been full and exhaustive. The proofs disclose an increasing incomr patibility, intensified by nervous irritation on the part of Mr. Brokaw. He is shown, however, to have provided liberally for his wife and was especially solicitous for her welfare, furnishing nurses and the best medical care for her during illness.

Mr. Brokaw’s tendency to jealousy was early manifested, and is admitted by his friends who have been called as witnesses on his behalf. And, as distrust toward one side leads to counter distrust, recriminations followed, in which Mrs. Brokaw sometimes showed suspicion toward her hu°band. These recriminations developed into bitter differences, followed, however, by mutual forgiveness and temporary reconciliations.

In view of the charges made, it should be stated that the evidence does not show that the defendant was habitually intemperate. On the contrary, he appears to have been moderate in that respect, although in his nervous condition any indulgence whatever was stated to have been forbidden by his physicians.

*310In view of the many contradictions arising in this mass of testimony, the court looks, first, at the written agreement of February 21, 1908, within about four months after the marriage— which was prepared at Fairview, H. 0., by Dr. Battle. From the professional relation he sustained to the parties, as well as his long acquaintance with the defendant, this document, dictated by him to and written out by the defendant’s secretary, becomes important. The agreement was signed by the defendant, followed by Mrs. Brokaw’s signature in concurrence, and was witnessed by the Marquis Hermosa, a close personal friend, Walter Byford, the secretary, and Dr. Battle, who had dictated its terms. Just previous to this agreement, it was stated by the plaintiff and confirmed by Dr. Battle, who was called as a witness by the defendant, that a serious difference had arisen which occasioned injury to the plaintiff’s health, producing a condition of hysterical collapse, and that this agreement had been drawn up in order to arrange a temporary separation by the parties. By it, the defendant promised to submit the differences to attorneys, with this significant clause: *“*In the meantime, I also pledge myself to leave Mrs. Broltaw unmolested in every manner whatsoever.” This instrument, prepared and witnessed by the defendant’s friends, is strong evidence that the plaintiff had been molested, and confirms the statement of Dr. Battle that 'these molestations were injuring her health.

Without discussing the various acts which, prior to that time, had been a matter of grievance between the parties, the court finds that the forcible breaking into Mrs. Brokaw’s sleeping apartments by the defendant in the daytime and at all hours of the night were acts injurious to her health, and which, if continued, would render it unsafe and improper for her to remain subject to such intrusion.. It appears that the defendant, without any special cause, but rather as a matter of habitual enforcement of his wishes, broke in the doors of Mrs. Brokaw’s. apartments at his own houses at Great Heclc and at Fairview, at the residence of his sister, at hotels in Hew York city and at hotels in France; and this was at various hours, extending into the early morning, either when *311he arrived back at the hotel, or when for any reason he demanded admittance. Considering that Mrs. Brokaw was in an excitable, nervous condition, being under the care of a nurse, she was certainly entitled to the privacy of her room; and such acts as the breaking in of doors, persisted in, tended to interfere with her rest, and, although not accompanied by violence to her person, were plainly disturbing and harmful. It does not appear that these acts of Mr. Brokaw were from bad motives, or with the intention of causing injury; but the repetition of such forcible entries into his wife’s rooms, against her remonstrances and the advice of his physicians, produced nervous shocks, sometimes driving her into hysterical conditions, and from which she is entitled to be protected.

Two disputed incidents occurred in which the plaintiff says that defendant threatened her life with a shot-gun, one at Fair view and the other in Paris. While such an allusion might have been made in the course of an embittered recrimination, I do not find that such threats were seriously made, or were so regarded at the time.

Special reference has been made to the incidents growing out of the automobile trip from Paris *via*Fontainebleau to Tours, which are thought important because from this rupture came the first resort, at Paris, to legal proceedings. After the discharge of the plaintiff’s nurse at Fontainebleau, which was demanded by Mr. Brokaw because he had been displeased at the nurse’s playing the piano in the salon, Mrs. Brokaw was forced to put up with a maid obtained the next morning from Paris, who was far from being a satisfactory substitute for Miss Blanchette, the nurse, who had been the plaintiff’s companion since leaving New York. It was natural that the subsequent trip to Tours should be inharmonious; and, on arrival at Tours, there was a rupture between the parties which resulted in Mrs. Brokaw’s return-" ing the next morning to Paris by train, while Mr. Brokaw remained over in Tours for one or two days and then drove his automobile back to Paris. Instead of rejoining his wife at the Hotel Astoria, where their baggage had been left on their departure for Tours and where Mrs. Brokaw had come *312from Tours, Mr. Brokaw took rooms at the Hotel Continental. After consulting Mr. Cachard, of the law firm of Coudert Brothers, there was served by a court officer upon Mrs. Brokaw a formal monition or notice to resume *(rein*tegrer) cohabitation, demanding her within twenty-four hours to come to him at his conjugal domicile, stated as at the Hotel Continental. Inasmuch as the plaintiff was then at the Hotel Astoria, which was the last domicile that she had known as their joint abode, this French notice could have no further effect than to advise her that the defendant had changed his residence to another place and to summon her there to rejoin him. As the parties were eventually reconciled, there was no further resort to the law of France.

Subsequently, when again in Paris, the defendant tried to enter plaintiff’s room against her protest; and an accident occurred by which his head was injured as the door was shut upon him. He again consulted his lawyers, with the result that he withdrew from their place of abode, went to London, separate and apart from his wife, and thence to America by the same steamer. Her transportation was arranged by Mr. Gilbert, his brother-in-law. Mr. Brokaw refused any communication with Mrs. Brokaw from the time of the accident in Paris until after their arrival in Hew York, notwithstanding her efforts to bring about a reconciliation, or at least the appearance of one, in the hotel at Southampton and on the steamship. Without deciding whether these facts constituted, cruelty in the legal sense, they seem sufficient to show that the defendant, on grounds that cannot be regardéd as serious, left his wife to the care of others, and on the homeward trip remained, apart from her, against her consent, and in a manner to cause embarrassment to her, especially on shipboard.

Shortly after their arrival, they were again reconciled; and, although it is evident that the health of both became more impaired as these controversies continued, they remained in *quasi*amicable relations until after the parting in October, 1908, when the wife was left at the country house at Great Heck and. the husband went to their southern home at Fairview, H. 0. During this absence, there were *313daily letters, more frequent telegrams, and, at times, the most minute inquiries by the defendant of the details of every movement that the plaintiff made. The defendant was especially insistent that plaintiff should have no visits at the house, except from a very few friends; that she should not engage in any. social functions; even that his sisters should not invite her to their houses when they had other company, and that she should abstain from entertainments in his absence.

About November eighth, at the time of the Horse Show i in New York, Mr. Brokaw sent a large number of telegrams inquiring of her and from her friends and from the servants' in the house as to her movements, as the plaintiff had prom-: ised not to attend. His telegram of November ninth, after ¡ the show had opened, contained a clear intimation of his knowledge of her movements. After repeating that he wished her not to go, he added: *“*I will also find out if you do *go.”*This is alluded to as indicating the constant inquisition kept up by the defendant over his wife’s movements in his absence. Along in December, the relations were further strained by Mrs. Brokaw’s impression that a . house party was to be given at Fairview to which she was not to come, and, on the other hand,. by Mr. Brokaw’s fears that his wife was transgressing her promises not to go out at Great Neck.

A trifling incident occurring on Sunday, December thirteenth, appears to have brought about the present separation. ■' On that morning, Mrs. Brokaw was called on the telephone, by some friends who were then on an automobile trip, ask-^ ing if' they could lunch at her home that day. It was diffi-. cult to decline such request. The party came and had ■ luncheon, arriving at about one o’clock and leaving at three, > and consisted of three ladies and three gentlemen, against! whom there is no breath of suspicion. Later, a lady arrived! who had previously .arranged to come Saturday to spend! Sunday, but had been detained so that she reached Great! Neck late Sunday afternoon. She was accompanied by a; gentleman escort, who remained in the house over night, i leaving early the next morning. The incident- was an ordi-¡ *314nary one, with, nothing approaching blame or criticism. These facts, perhaps exaggerated in the channels through which they came to Hr. Brokaw, caused him at once to inquire by telegraph the names of the men, which Mrs. Brokaw answered, giving their last names. Mr. Brokaw then telegraphed asking their initials, with a demand for the name of the fourth man who had escorted the lady to dinner and remained over night. Before this was answered, the defendant sent two telegrams, as follows:

> *“Dec.*15, 1908.

> “ To Mrs. Brokaw,

> “ Great Neck:

> “ I am closing house at Great Neck next week. Communicate with Mr. Bush. Will not have any more men visiting my house except your brother or your family. If these instructions are not carried out my servants shall refuse to serve them.”

> “ High Point, N. C., *Dec.*17, 1908. “To Mrs. J. A. Blair:

> “I am very sorry to have been compelled to close my house in Great Neck and to start proceedings for a separation from Mary. Her actions culminates in a house party last Sunday forced me to this step. She entertained three ladies and three men, two ladies I do not approve of and the third I don’t know at all. The men I don’t know either and Mary refused to give me their first names. She allowed one man to occupy my bedroom next to hers over night, while she put the nurse and one of the ladies in the bachelor quarters. She failed to give me that man’s name and an explanation of this peculiar action in spite of my request.”

Thereafter, the house was closed. _ The defendant, however, through his attorney, provided a weekly allowance of $150, which continued until this action was brought.

It seems to be argued that this closing of the house and referring Mrs. Brokaw to Mr. Bushe, his attorney, did not *315constitute an abandonment within section 1762 of the Code, because the defendant continued to support the plaintiff by means of this weekly allowance.

At the very time that this step wTas taken by the defendant (December fourteenth), he received a request from his wife to rejoin him at his home at Fairview. Fo overtures for a reconciliation appear to have been made; and this incident, which from a full examination is shown to have been trifling and without blame on the part of any one, has led to the separation which has since continued. The statement that he would start proceedings for a separation, coming with the closing of the Great Feck house, was a clear declaration of Mr. Brokaw’s purpose; and this statement of his determination was not afterward withdrawn or modified. To say that this is not an abandonment within the meaning of the Code, because defendant gave plaintiff $150 a week, is to limit an abandonment to eases only where no support is furnished. Such a rule would make the husband the arbiter of the allowance to the wife from whom he separates, and take from her the legal means of reviewing his conduct. This was none the less an abandonment because of the payments through the defendant’s attorney. The closing of the house, the form of the notification given, and especially the telegram to the mother of the plaintiff, are clear evidence of an intent permanently to separate from the wife, without her consent, and without justification. Williams v. Williams, 130 N. Y. 193; Clearman v. Clearman, 15 Civ. Pro. 313; McGrath v. McGrath, 103 Mass. 577.

The plaintiff is, therefore, entitled to a decree of separation on the grounds of Mr. Brokaw’s conduct rendering it unsafe and improper to live with him, and because of the act of abandonment and separation by Mr. Brokaw in December, 1908.

The evidence of the financial means and yearly income of the defendant is not clear or convincing. The defendant declined to testify to the correctness of the statement presented at the conclusion of the trial which showed acknowledged assets of $1,639,239 and a gross income of $71,000, from which was estimated a net yearly income of $46,706. *316In the defendant’s affidavit upon the motion for alimony *pendente lite,*verified abroad, he stated his yearly income as $70,000.

If alimony, depended on a fixed fraction of income, the court would not regard the defendant’s evidence on the trial as overcoming the inference of greater financial means from the proof by Mr. Armstrong that far larger amounts than are now admitted were paid defendant from his father’s estate prior to May 1, 1907.

It is, however, settled that alimony is not based on a. definite part of the husband’s estate, or his yearly income. Considering the station in life of the parties, and the circumstances of this separation, the court fixes the alimony to ■ be paid to Mrs. Brokaxv by Mr. Brokaw as $15,000 a year, payable in equal monthly instalments of $1,260.

The indefiniteness as to defendant’s personal property and the nature of the investments disclosed at the trial raise the question whether some provision for security for the payment of the alimony should be embodied in the decree. Code Civ. Pro., § 1772. Although the defendant is a freeholder, with a legal residence within this county, the question whether or not to provide for such security is reserved until the settlement of the decree.

The decree,- therefore, should direct that alimony, as herein fixed, shall begin from the date of the entry of the decree, for the maintenance and support of the plaintiff during her natural life, such payments not to be in lieu of the plaintiff’s right of dower in the defendant’s real estate.

Findings and decree in accordance with the foregoing are to be settled on the usual notice.

Judgment accordingly.