## Facts

- Husband and wife married in New York City in May 1814 and lived together there.
- The wife alleged repeated acts of personal violence and brutality by the husband in 1818 and sought a divorce *a mensa et thoro* based on cruel and inhuman treatment.
- The husband admitted acts of violence, though minimizing their severity, and attempted to justify them as provoked by the wife’s disobedience and language.
- The husband accused the wife of unchastity, but the record contained no proof supporting that charge.
- On August 31, 1818, the husband struck the wife, dragged her by her hair across the floor, and was prevented by another person from beating her with a stick.
- The wife left the marital home after the August incident, taking the parties’ only child, a son about two to three years old, citing danger to her safety and concern about the father’s example for the child.
- The wife requested (1) separation from bed and board, (2) custody of the child (at least temporarily), and (3) maintenance for herself and the child.
- The husband submitted to a separation decree but opposed awarding custody to the wife and opposed any maintenance order.
- Proof indicated the husband had assets and income sufficient to support a separate household for the wife and child, though with some difficulty.

## Issues

1. Whether the husband’s conduct constituted cruel and inhuman treatment sufficient to justify a divorce *a mensa et thoro*.
2. Whether custody of a very young child should be placed with the mother despite the father’s request to retain his son.
3. Whether, after a fault-based separation caused by the husband’s misconduct, the husband must provide maintenance to the wife (and child in her care), and how the allowance should relate to his means.

## Decision

- The court granted the wife a divorce *a mensa et thoro*, ordering a separation from bed and board “forever,” while allowing for discharge upon joint application consistent with reconciliation.
- The court awarded custody of the young child to the mother.
- The court ordered the husband to provide maintenance for the wife (and, in effect, support for the child living with her), set in light of the husband’s ability to pay.

## Legal Principles

- Repeated and serious physical violence endangering a spouse’s safety constitutes cruel and inhuman treatment warranting a divorce *a mensa et thoro*.
- A decree of separation from bed and board suspends cohabitation while leaving the parties married and may be permanent in duration yet subject to termination upon reconciliation.
- A spouse whose misconduct causes the separation remains under a duty to support the other spouse; chancery may award alimony calibrated to the obligor’s means.
- In custody determinations, chancery may place a very young child with the mother when the father’s conduct shows violence or poses a risk to domestic safety and the child’s welfare.

## Conclusion

The court granted a permanent judicial separation based on the husband’s cruelty, placed the parties’ very young child with the mother, and required the husband to pay maintenance consistent with his continuing support obligation and financial capacity.


Barrere v. Barrere, 4 Johns. Ch. 187 (N.Y. Ch. 1819)