Budlong v. Budlong , 1 R.I. Dec. 112 ( 1925 )

CAPOTOSTO, J.

The petitioner seeks a divorce from bed and hoard on the grounds of neglect to provide, cruel aDd abusive treatment and gross misbehavior.

Mr. and Mrs. Budlong were mar-lied in Scranton, Pennsylvania, in 1898, and have three children — a daughter, Frances, now twenty-two years old, and two sons, John and Milton, aibout twelve and nine years of age respectively. Their early married life was passed in various places; the permanent residence was finally fixed in New York city. Here Mr. Budlong made money and Mrs. Budlong began to show a desire for society and social recognition.

It would be a vain effort to attempt to go into the evidence presented in this case. The fundamental facts, covering a period of some 25 years, with their ramifications, explanations and innunendoes cannot be summarized but must be considered in their entirety to be intelligently understood. Even this fails to a certain extent to explain the true atmosphere surrounding the court during the trial of this case, for the record, though complete, fails to convey to the reader the varied physical expressions of speech and demeanor which qualified or accompanied a given bit of testimony.

While the immediate problem presents a question of law, the ultimate rights of the parties really rest upon the solution of a series of facts and characteristics which are more psychological than legal. In broad terms the general picture presented shows a man who by earnest efforts and untiring application to business ultimately attains a position of comparative wealth. His eagerness to succeed makes him labor early and late, weekdays and holidays. Two things he desired most: results in the business world and a contented family that could know no want. During the time that Mr. Budlong was accumulating the means which would insure the future welfare of his family, his wife was gradually losing the proper perspective of family and social life and began to cherish a hope — which later became a longing — for ultimate admission to the most exclusive circles of society. At first we see a family whieh enjoyed the reasonable comforts of wealth; later we discern a household which, insofar as the wife and daughter are concerned, is the center of ambitious plans, both as to manner of living and places of abode.

Money was the key with which the desired end was to be accomplished, and this Mrs. Budlong secured from her husband through various means. Although at first the husband contributed willingly, he later was reluctant and toward the end seriously remonstrated because the expenses far exceeded his income. Nevertheless, yielding to the suggestions, desires, importunities and ultimately the threats of his wife, Mr. Budlong gave her everything she desired, including the purchase of “The Reef,” a palatial summer residence for the family situated at Newport.

Mr. Budlong was essentially a business man who enjoyed pleasant surroundings and limited social activities. He did not, however, aim to reach the social heights which his wife hoped for and which for him had no real attractions. His indulgent and yielding attitude towards his wife was a means which Mr. Bud-long adopted, perhaps inadvisedly, in an endeavor to keep his family together.

Social ambition, a desire to have control of unlimited funds, over-sensitiveness, stern determination and unwarranted jealousy and suspicion are the predominant characteristics of the petitioner as disclosed by the evidence in this case. Mr. Budlong has been lavish in the support and maintenance of his wife and family. The charge that he neglected to provide necessaries according to his means is unjust.

As to the allegation of cruel and abusive treatment, the evidence denies the accusations of the petitioner. Rather than his having been proven guilty of a conscious and preconceived course of cruel conduct towards Ms wife, the testimony shows that Mr. Budlong exercised patience and forbearance to the highest degree under the most trying circumstances.

The evidence produced to sustain the charge of gross misbehavior is based solely upon conjecture and suspicion. An over jealous mmd distorts innocent acts into improper conduct. This phase of the case especially must be considered in its entirety to appreciate in a more or less definite manner the mental attitude which the petitioner took toward her husband. The testimony clearly disproves this unwarranted charge and leaves M.r. Budlong as the real sufferer at the hands of his wife through charges inconsiderately made which were unfounded in fact.

The petition is therefore denied.

The unfortunate position of the two boys, John and Milton, reflects the saddest aspect of this case. At an age when character is developing and when influence for good or bad may either make or destroy their entire future, the welfare of these boys is of the utmost concern to this court. They are regular boys and as such they should be subjected to discipline while permitted to enjoy the reasonable privileges of any youngsters of their age. Manliness, self-reliance, love of home .and parents, and the appreciation that luxuries are to be expected only as the result of effort and accomplishment are traits of character which every father wishes to develop in his offspring. This court is’ of the opinion that these desirable characteristics not only can not be developed but on the contrary will be 'Stiflled in the atmosphere in which the children are now living. The success which the petitioner has had with her 22 year old daughter, Frances, does not command itself to the court. A daughter brought to womanhood under the control of the petitioner, who, after receiving every bounty at the hands of her father, ungratefully denies him even the opportunity of speaking to her, does not reflect a prior course of training which tends to the stability of home and family.

While Mrs. Budlong is undoubtedly a lady of unimpeachable moral character, yet this fact alone is in-' sufficient to entitle her to the custody of the boys. That she' is attached to John and Milton is conceded, but Mr. Budlong loves them, too. Mrs. Budlong on the one hand has produced a rather unsatisfactory result, to say the least, in the bringing up of Frances; Mr. Budlong, on the other, has made a success in life, knows men and appreciates the difficulties that must be encountered by our young men of the future. At present the children are in an enervating atmosphere which does not promise real results to anyone.

Section 14 of Chapter 291, General Laws of 1923, provides that this court “may regulate the custody and provide for the education, maintenance and support of children * * * * * 0f all persons to whom a separate maintenance may be granted or who may petition for the same.”

'Upon the denial of any such petition, the aggrieved party has a right to prosecute a bill of exceptions as in any other' civil action. To all intents and purposes the petitioner, even where the petition for separata maintenance is denied by t-his court, still continues “to petition for the same” until the period of seven days during which exceptions may be' prosecuted has expired without any proceedings for review having been taken, or if such proceedings have in fact ‘been instituted, until determination by a court of final jurisdiction. If this court were inclined to avoid responsibility, it might with propriety deny the petition without further consideration. In this particular case, however, to overlook the question of custody because of an apparent innovation in tlie practice heretofore followed would he unfair to the parties and to the state. For many days the innermost secrets of the Budlong family have been openly divulged. The predicament in which the elders find themselves may be due to choice or to unfortunate circumstances, but the two boys, John and Milton, are the innocent sufferers in this whole affair. For their sake, therefore, this court, for the reasons hereinbefore stated, decides that the custody of the said minor children, John and Milton Budlong, should be and such custody is hereby granted to the father, Milton J. Bud-long, until further order or the court. Any decree heretofore entered in this case as to the custody of the said minor children is hereby vacated. Mrs. Budlong, if she desires, is to have every reasonable and proper opportunity of enjoying the company of her children from and after the entry of this order. I trust that this phase of the boys’ life may be amicably adjusted by the parties without further intervention by the court.

For petitioner: Malcolm D. Cham-plin. For respondent: Albert Phillips and Chauncey E. Wheeler of Hinckley, Allen, Tillinghast & Phillips for respondent.

As the Budlongs are essentially a New York family, it may develop that the best interests of the boys demand their leaving Rhode Island. Mr. and Mrs. Budlong originally came to this state as summer residents of Newport, and Mrs. Budlong probably remains here principally for the purposes of this case. The court, while expressing confidence in Mr. Budlong in his returning the boys to the jurisdiction of this court whenever required, yet feels that if at any time Mr. Budlong deems it for the best interests of his sons to take them outside of this jurisdiction, he shall first enter into a bond, with sufficient surety or sureties to he approved by the court, in the penal sum of $50,000 running to Sydney D. Harvey, Clerk of the Superior Court for the County of Newport, or his successors in office, to and for the use of the State of Rhode Island, conditioned upon his (Mr. Budlong) returning his said sons, John and Milton Budlong, to this jurisdiction whenever and at such times, during the pendency of this petition, as their presence in this state is required or demanded by our courts.

The respondent in compliance with this rescript may enter a decree denying the petition and vacating any previous order relating to or concerning the custody or control of said minor children. He may further enter an interlocutory decree awarding the custody of the said minor children to the said respondent, Milton J. Bud-long, upon the terms and conditions hereinbefore stated. ' •