54 N.J. Eq. 298 | New York Court of Chancery | 1896
The petitioner seeks a divorce a vinculo matrimonii, because of her husband’s willful, continued and obstinate desertion of her for upwards of two years prior to the filing of her petition.
The proofs disclose that she and the defendant were married in October, 1879, in the city of New York, and thereafter resided in that city until the year 1886, when they removed to a dwelling which the défeñdant had erected in Bernards township, in Somerset county, in which county they have retained their residence hitherto.
One evening in October, 1891, upon the petitioner’s return from New York city, her husband, in violent temper, accused her of infidelity to her marriage vows through criminal intimacy
The proofs abundantly satisfy me that these efforts were made in good faith, and that every overture on her part was rejected by the defendant, who steadfastly insisted that she had been unfaithful to him and her’marriage vows.
The precise date of the separation of the husband from his wife is not in proof, but it is clear that it was prior to the 1st of March, 1892, so that when the petition in this suit was filed more than two years had elapsed.
The attitude of the defendant satisfies me that his separation from his wife has been willful, continued and obstinate. The-question is, was it justifiable ?
The records of this court show that, on the 27th of June, 1894, Mr. Drayton filed his bill for an absolute divorce from his wife upon allegations of adultery upon her part with B., and that in October of the same year Mrs. Drayton answered that bill, denying the truth of its allegations, and that from that timé hitherto the defendant has not produced his proofs and brought his cause to hearing. By his answer in the present suit he does not reiterate his charges against his wife in defence to her action,
After the petitioner’s proofs had been closed, the defendant declared that he would not offer any evidence upon his part.
It clearly appears that the defendant entertained grave suspicions which, I think, convinced him that his wife had been disloyal to her marriage vows and duty, and, when it is considered that the wife, rendered unhappy by her husband’s suspicion of her adultery with B., selecting that person in preference to her father and all other kindred and friends, as her supporter in the emergency that confronted her, and summoned him by telegraph from America to England, and that he promptly obeyed that summons, and at his hotel, to which she went, counseled with her in dealing with her husband with a view to a separation from him, it is impossible to escape the conviction that the husband’s grave suspicions were not destitute of foundation, in questionable circumstances at least. But I fail to find, and my attention has not been directed to any adjudication which holds that, under a statute similar to ours, a husband may, with impunity, be guilty of desertion of his wife, merely because he believes her, even under gravely-suspicious circumstances, to have been guilty of adultery.
In a Massachusetts case, strong prima facie evidence of a husband’s adultery appears to have been held sufficient to defeat his application for divorce for the wife’s desertion, but there the statute provided that the desertion was to be without fault on his part. Clapp v. Clapp, 97 Mass. 531. The generally-accepted, and, I think, the true, doctrine is, that continued desertion, as contemplated by such a statute as ours, is justified only when it is shown by clear and satisfactory proof that the deserting party has been so offended against as to authorize, at his instance, a decree for divorce or judicial separation. Blade v. Blade, 3 Stew. Eq. 221; Moores v. Moores, 1 C. E. Gr. 275; Weigand v. Weigand, 14 Stew. Eq. 209; 1 Bish. Mar., D. & S. §§ 1217, 1742; Browne Div. 152, 159; Stew. Mar. & D. § 257.
In Grove’s Appeal, 37 Pa. 443, 447, Judge Strong said: “We
If, then, the defendant would rely upon his wife’s adultery as a defence against her charge of desertion, he must prove it.
There is no evidence that it was the intention of the defendant, at the time he left the petitioner, to institute a suit for divorce on the ground of her adultery. He did, in fact, commence such a suit in June, 1894, a time so remote from the commencement of the separation that more than the period prescribed by law, within which desertion must continue to constitute a cause for divorce, had intervened and thereby a cause for divorce had then become available to her, and éven after the lapse of that time his suit was not prosecuted with diligence.
If his suit had been brought promptly and in good faith after the separation, the time'consumed by it, during which the law does not require hita to cohabit with his wife, would not be computed as part of the statutory period necessary to the desertion which will authorize a decree for divorce (1 Bish. Mar., D. & S. § 1757), but its mere institution after such statutory period of'desertion was complete (it matters not whether in good faith or otherwise) will not avail as a defence to a suit by the wife for divorce on the ground of desertion. 1 Bish. Mar., D. & S. § 1758. It was his duty to act expeditiously, so that his wife should not remain longer than necessity required, if guilty, unconvicted, and if innocent, under the shadow of a scandalous and disgraceful charge.
The remaining consideration which suggests itself is whether the present suit is collusive.
After the case was submitted to me, out of abundant caution against the deception of a collusive suit, I caused the petitioner to be again and further examined as follows, upon interrogatories under commission sent to England, where she was then sojourning:
“1. Was there any arrangement, agreement or understanding between you and your liusband, or between any persons acting in behalf of you and your husband or either of you, or in behalf of your father’s family or any member or members of it, in pursuance of which' your suit was commenced or prosecuted, or in pursuance of which your husband refrained from defending against your suit on the ground of your alleged adultery ?
“Answer. There was not.-
“ S. Have you had any intimation of the existénce of any such arrangement or agreement ? If yes, state fully what that intimation was.
“Answea-. I have not.
“ S. Bead over with care the testimony which you gave in this cause, on the 27 th of May, 1895, and state whether you are aware of any suppression or*304 evasion, either in or by the questions put or in or by the answers given, or by the omission of questions or answers, whereby some agreement, arrangement, or understanding of the character indicated by the first above question is not revealed to the court ? If yes, state what is suppressed or evaded.
“Answer. I have read over my testimony, given on the 27th of May, 1895, and answer that I am not aware of any suppression or evasion, either in or by the questions put, or in or by the answers given, or by reason of the omission of questions or answers, whereby some agreement, arrangement or under* standing of the character indicated by the first above question is not revealed to the court.
“ 4- Why do you not ask for the custody of your children or the custody of one or more of them ?
“Answer. A proceeding was commenced in the surrogate’s court of the county of New York, on the 12th of June, 1894, wherein I am the petitioner, and in which I ask to be appointed guardian of my two youngest children, and to have such an allowance as the surrogate should determine to be a proper one for their support, made payable to me as such guardian. This proceeding has been adjourned from time to time, pending the final accounting of the trustees under my father’s will, which will be had in March, 1896'. My father left a fund of $850,000 in the hands of New York trustees, for the support of my children. It was for an allowance out of that fund that I applied to the surrogate of New York, but I was influenced quite as much by this: I expected that my suit would be defended on the ground of infidelity. My lawyers told me that even if I obtained a divorce on the ground of desertion, I might not be awarded the custody of my children, as other considerations would control that question. They also told me that the question of who should have the control of the children could be raised after the divorce proceedings were ended, as well as in such proceedings. I thought it best, on this account, independent of the New York proceedings, to tender in my divorce suit the single question of my guilt or innocence of the charges my husband was making against me, and leave the question of custody of our children to be determined afterwards.
“5. Have you in any manner, directly or indirectly, assented to your husband’s having and retaining the custody of your children? If so, state with full particulars what that assent was and thg facts and circumstances which led to it.
“Answer. I have not.”
The reason why the defendant did not urge the defence of adultery is not apparent. It may be that he was satisfied that he could not prove it, or it may possibly be that, in view of the probable success of her suit and the attainment of an absolute divorce in it, if he did.not successfully defend on the ground of her adultery, to avoid the scandal which the proof of such a defence would occasion, he denied the desertion merely. It is not
It is noted that, in his answer, after denying the desertion charged, the defendant adds the significant language, that his wife “ was fully advised of his movements and his reasons therefor,” which appears to me to be the covert reiteration of his charges against his wife, sufficient to mortify and insult her, without putting him to the necessity of proving his charges, and tends to show that when he answered, at least, he did not act collusively with her, for in that event it is not probable that he would have made this useless and unnecessary averment.
I do not' find anything in the case to justify me in refusing the decree sought.
The divorce will be granted'.