Cupps v. Cupps

Per Curiam. In his bill for a divorce from the bonds of marriage, appellee (Husband), charging adultery, asked also for the custody of the children, daughters aged 9 and 13. Appellant (Wife) answered denying the adultery. In her cross-bill she alleged desertion and the surreptitious abduction of the children by the Husband.

She asked for their immediate return and permanent custody, temporary and permanent alimony, permanent maintenance for the ■children, costs and counsel fees. After hearing testimony for two days and examining 38 exhibits the trial judge (Shure, J.) dismissed both the Husband’s bill of complaint and the Wife’s cross-bill. He retained jurisdiction of the parties and gave the Husband custody of the children, subject to the further order of the court. Also he ordered the Husband to pay the Wife’s solicitor $500.

Judge Shure said, in his able opinion, that “the testimony ■disclosed an adulterous and clandestine relationship between the” Wife and another man. However, he added, “while the husband had ample grounds for divorce, his conduct, even up to the night before the trial, was one of complete forgiveness and the court must, therefore, hold that her adultery had been forgiven.” In respect of the cruelties alleged in the Wife’s cross-bill he said “there was no proof other than her own testimony.” Judge Shure also gave his reasons for awarding custody to the Husband. He said: “Esther Cupps’ conduct over the past several years has been of a nature completely inconsistent with that of a true and faithful wife and lacking that of a mother example to her children. Also, she has been a career ⁷⁰² musician, spending a great deal of time away from her children.

Charles L. Pierce, Chairman of the Music Department of the Columbia Union College, where she was formerly employed, testified that the father’s relationship with the girls was good and that he was completely capable of being a good custodian. Neil Til-kens, another teacher, testified of tensions between the mother and the children; Enos C. Levy, a friend of both parties for the past five years, testified that