97 N.J. Eq. 264 | N.J. Ct. of Ch. | 1925
The parties were married in 1912 and cohabited until 1916, when the defendant deserted the petitioner. On April 27th, 1917, the petitioner commenced a suit for divorce on the ground of adultery, wherein a citation was issued and returned as having been served personally on the defendant. In that suit the defendant was apprehended under authority *265
of a writ of ne exeat, and released from custody on January 22d 1918, since which time no further steps have been taken in the cause. Without dismissing, or in any other way terminating, the proceedings just referred to, the petition in this cause was filed on July 2d 1922, alleging desertion by the defendant, commencing in July, 1916. Thus, it will be seen that only the period from July, 1916, to April 27th, 1917, had expired before a suit for divorce was instituted between the parties. The master reports that none of the time since the date last aforesaid, and before the filing of this petition, can be counted in the period of desertion under the authority of Marsh v. Marsh,
The legislature of this state has prescribed the only grounds upon which this court is authorized to grant decrees of divorce, and one ground is that of desertion. But it is not every description of separation by one of the spouses from the other that comes within the kind of desertion described by the act. The law-making body has gone further, and said that not only must the desertion be willful and continuous, but that it must be obstinate, or against the wishes and desire of the complaining spouse. McGean v. McGean,
Upon first reading it would appear as if the exceptions must be overruled by reason of the decision in McLaughlin v.McLaughlin,
The entire rule springs from a brief statement of law enunciated by Chancellor Green in the Marsh Case (at p. 318), where he says:
"The presumption must be, therefore, if the wife absent herself from his home, pending a suit against her for adultery, that such separation is by his procurement or with his assent."
This language has been referred to and commented upon in almost, if not every, case upon this point. A reading of it will show that by its terms it is a mere presumption (not a conclusive presumption), and, therefore, that it may be rebutted and overcome. It does not amount to a rigid rule of law to be applied as, for example, is the statutory rule or direction that a written will is not probatable unless witnessed by two individuals or declared by the testator to be his will to both witnesses at the same time. Bioren v. Nesler,
"The pendency of a libel for divorce is an evidentiary fact, bearing upon the question whether the absence complained of is such an abandonment as the statute makes a cause for divorce, but it is not necessarily decisive of the question. * * * But in this case the separation was not caused by the plaintiff's former suit, nor justified by the plaintiff's conduct, but resultedfrom the defendant's wrongful act prior to the commencement ofthat suit. The former application for divorce upon the ground of abandonment did not conclusively establish that the libellant consented to the separation, nor the pendency of the application necessarily destroy the libellee's abandoning intent." (Italics mine.)
While this decision has no binding effect upon this court, the reasoning of the chief-justice appeals to me as a sensible and logical statement of the effect of the rule in question, and was given force by the chancellor's adoption of it in the SarsonCase.
Briefly considered, the proofs before the matter, abundantly corroborated, prove that in 1916 this defendant abandoned the petitioner against her will and with the determined intention of never returning to her. In order to shake off his obligations to her and their child, and another to be born, he even hinted at suicide, accused himself of adultery, and represented himself as being a fugitive from justice. After he had deserted his family he was three times brought back into this jurisdiction ininvitum by the criminal authorities under an indictment for desertion. Upon his trial he admitted that he had received his wife's message concerning the death of one of their children, and that not even that tragedy had been sufficient to bring him back to attend the funeral. In face of these facts, and in consideration of *269 Sarson v. Sarson and Easter v. Easter (supra), it would be the height of the ridiculous to assume, or for any court to say, that this man remained away from his wife because of the petition on the ground of adultery.
Thus, the desertion being willful and continued for the requisite period, it only remains to be determined whether it was obstinate, in view of the presumption arising from the pendency of the first suit. "Obstinate" means against the will of the other party. The facts are, as abundantly shown in the proofs, that repeated efforts were made by the defendant to secure the acquiescence of his wife in a separation. It is just as fully established that she very properly refused to agree to any such proceeding, but, on the other hand, went far beyond what it was her duty to do to try to bring this man to a realization of his duties and a re-establishment of their home. She had thought enough of the defendant to become the mother of two of his children, and appears to still have had enough affection for him to desire to live with him. When she was finally driven to understand that he would never repent and take up again his obligations and give to her his society to which she was entitled, she resorted to the remedy that the law has fabricated to meet just such a case and filed her petitions, under the first of which she apparently had no sufficient proofs, but under the second of which she had evidence in abundance. It seems to me that to apply in this case the rule laid down in Marsh v.Marsh, supra, would be to carry the presumption, which she has met and overcome, to a conclusion at odds with the clear intent of the legislature, as expressed in the Divorce act. InMcLaughlin v. McLaughlin, supra, there was no such state of facts presented as to be found in the case at bar, and, in addition, there is the further significant fact that the defendant in the McLaughlin Case promptly, vigorously and continually defended his wife's suit for divorce, from which it may well be inferred that he was not averse to the marriage state, and that the wife may have been all too well pleased with the separation existing between her and her husband, while in the case now to be decided, for the reasons I have shown, it is *270 manifest that the defendant deserted the petitioner entirely against his wishes, and, in short, that it was through his obstinacy.
If it were made to appear that the suit for adultery was instituted by the wife with the fraudulent design of keeping the husband away from her, and then seek to predicate a petition on the ground of desertion upon that separation, a very different case would be presented. Or, if it were not so clear that the petitioner had shown beyond peradventure her dissatisfaction with the breaking up of the home, a different determination might be reached.
The exceptions should be sustained. *271