McCarthy v. McCarthy

James F. Reynolds for petitioner. Gilbert K. Gottlieb for respondent. Family Court Rule XXXI provides:

"(a) A petition may be dismissed if: * * *

"(2) Its essential allegations are not established by a fair preponderance of credible and competent evidence after a hearing; * * *

"(d) Dismissal not on the merits shall be stated to be without prejudice to renewal if the grounds of dismissal and the attendant circumstances so indicate." (Bender's Court Rules [1st ed.], pp. 372-373.)

For the foregoing reasons the petition must be, and it hereby is, dismissed for failure of proof, but with leave to file a new petition when and if the necessary jurisdictional facts will have occurred after January 10, 1951 (the date of the petition in the instant proceeding). (See Anonymous v. Anonymous, 173 Misc. 244; Matter of Wignall v. Wignall, 163 Misc. 910.) Such dismissal is, of course, also without prejudice to the right of either party to institute a plenary matrimonial action in the Supreme Court (see Loomis v. Loomis, 288 N.Y. 222, 225). Today's decision is rendered reluctantly and with a sense of frustration, because it does not solve the acute problem of the parties; and if it encourages respondent's intransigence it may in the long run prove a costly "victory". For, his insistence on making all purchases of food and other necessaries and refusal to entrust his wife with any moneys is not unlikely to develop sooner or later a cause of action for separation on the ground of failure to support or cruelty, and a consequent burden of counsel fees. Both parties profess devotion to a religion that prescribes for its followers that "the valid marriage of Christians, consummated by the conjugal act, cannot be dissolved by any human authority for any reason; death alone can dissolve the bond" (Woywood, A Practical Commentary on the Code of the Canon Law, p. 64); and a poet has autobiographically written: "Where love once was, let there be no hate". Would that such devotion and the memory of their deceased child soften the hostility of these now embattled spouses, if not for a reconciliation, at least into a voluntary separation and an agreement on a compromise figure somewhere between respondent's alleged offer of $10 a week (which is unreasonably low) and petitioner's alleged demand of $25 (which is excessive). Finally, there is quoted as nearly apposite the following comment from an earlier opinion:

"Besides, for her self-respect and peace of mind and as therapy for her nervousness, petitioner should resume gainful occupation and shun `alimony-mindedness'. * * * On the other hand, respondent may be not only callously ungenerous but also pursuing a penny-wise, pound-foolish policy in rigidly standing on technical defenses at this juncture. The decent, and long-term prudent, course for respondent might be voluntarily to help tide petitioner over a brief period of readjustment to the collapse of the annulment scheme and relieve her from the tensions of the drain on her dwindling savings while pulling herself together." ( "Filicaza" v. "Filicaza", 192 Misc. 76, 79-80.)

Notice shall be given pursuant to the subjoined direction. [*] The opinion as filed sets forth the true names of all parties but as here published substitutes fictitious names and disguises certain other details, in consonance with the spirit of section 52 of the Domestic Relations Court Act of the City of New York (L. 1933, ch. 482, as amd. by L. 1942, ch. 761),