Cook v. CookCook v. Cook
The legislature of this state has prescribed the only grounds upon which this court is authorized to grant decrees of divorce, and one grоund 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 thе desertion be willful and continuous, but that it must be obstinate, or against the wishes and desire of the complaining spouse. McGean v. McGean, 63 N.J. Eq. 285. In the Marsh Case it was said by the chancellor that there was a presumption that a wife who absents herself from her husband‘s home pending a suit by him against her for adultery does so with his assent, because it is clear that one would not sue a spouse for that offense and still desire to have the latter cohabit with him. The only exceptions to this rule with which I am familiar were in cases such as Weigel v. Weigel, 63 N.J. Eq. 677; VonBermuth v. VonBermuth, 76 N.J. Eq. 487, and Byrne v. Byrne, 93 N.J. Eq. 5. In the first of these cases, it was conclusively shown that the first suit by the defendant was not only defeated, but overwhelmingly shown not to have been brought in good faith.
Upon first reading it would appear as if the exceptions must be overruled by reason of the decision in McLaughlin v. McLaughlin, 90 N.J. Eq. 322. In that case, the first petition in point of time was filed on October 28th, 1916, and alleged actual desertion in 1912. As in this case, the cause was permitted to sleep, and never carried to final hearing until after the filing of a new and entirely independent petition on October 30th, 1918, alleging constructive desertion instead of actual desertion. Then a motion was made in the suit under the petition of 1916 to dismiss the original petition as of a date that would clear the two years next preceding the filing of the second petition. Although the chancellor denied the application, he clearly intimated that “in the domain of reason” the first suit should not operate as a bar, but found himself faced with the decision in Johnson v. Johnson, 65 N.J. Eq. 606. The case sub judice presents circumstances that appear to differentiate it from any to be found in our records except an unreported case to be mentioned hereafter.
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, 77 N.J. Eq. 560. Rather is it a rule of evidence to be weighed in with all the other facts and circumstances of the case. In the cases of Weigel v. Weigel, Von Bermuth v. Von Bermuth and Byrne v. Byrne (supra), the exceptions to the rule had all been based upon mala fides in the institution or pendency of the prior suits, and, therefore, the presumption was overborne. This could not have been so if it was an unyielding rule such as Lord Coke‘s understanding of the effect of the doctrine of estoppel. In the unrecorded case to which reference has been made, namely, Sarson v. Sarson (Docket 31), 474, the first suit was commenced July 9th, 1907. It was never actually dismissed until after the second suit had been commenced, but it had been treated as abandoned from the time of the filing of an opinion by Vice-Chancellor Stevens on July 16th, 1908. The master to whom the second cause was referred found that there had been willful and continued desertion, but that the same had not been obstinate because of thе pendency of the former suit, or until at least July 16th, 1908, upon the filing of the opinion mentioned, when insufficient time would have remained. The chancellor, principally upon the reasoning of Easter v. Easter (a New Hampshire case reported in 73 Atl. Rep. 30), sustained the exceptions to the report, and decrees nisi and final
“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 resulted from the defendant‘s wrongful act prior to the commencement of that suit. The former application for divorce upon the ground of abandonment did not conclusively establish that thе 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 Sarson Case.
Briefly cоnsidered, 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 bаck into this jurisdiction in invitum 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
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 sеparation. 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-еstablishment 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 undеrstand 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 hеr 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. In McLaughlin v. McLaughlin, supra, there was no such state of facts presentеd 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
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.