85 N.J. Eq. 194 | N.J. | 1915
The opinion’of the court was delivered by
This is an action for divorce by a husband upon the ground of the wife’s desertion. Desertion to prove effective must possess three well-recognized essentials. It must be willful, continued and obstinate. The principal question to be answered in this case*is whether after the desertion had occurred and during the statutory period of two years preceding the filing of the petition, the desertion lost the third or last necessary characteristic by the refusal of the petitioner to grant his wife a personal interview in some private place where the two could be alone together. The advisory master, who heard the case, concluded from the testimony as follows:
“I report that under these facts and circumstances the defendant was guilty of desertion; that she left her husband without cause, and refused to live with him in a proper home supplied by him for them both, and that such desertion was willful.”
In this conclusion of the advisory master we concur.
He'further reported, however, as follows: “That the petitioner has not performed the duty required of him by the law; that he should even, though his wife deserted him, seek her out and endeavor to persuade her to return to him and at least disclose to her a continuing desire on his part that she should resume marital relations with him.”
In the spring of 1913, probably, the month of May, the defendant met the petitioner at the ferry, in Camden, on his return from his business in Philadelphia. The meeting, although arranged by her, was entirely unexpected by him. They walked up Cooper street together. She asked him if he intended to put her in the home he had promised. He denied having promised her anything of the kind. He said that his home was still open. He requested her to come there, saying that in view of the fact that he was away from home so much it would be more congenial and pleasant for her there. She restated her position, stating that she would not come to live with his mother. She then asked for a personal interview alone with him, stating that she had something important to say to him. He refused this request, but told her that if she had anything to say, to tell him there on the street, or write him a letter. When asked by the advisory master why he refused such an interview, he stated in substance that he was unwilling to be alone with her lest something might occur that would make it necessary for a new period of two years to run from that time. Whether it was incumbent upon the petitioner upon this occasion to grant -his wife’s request to be alone with him for the purpose of an interview depends upon whether she gave him any evidence at the time, of a change of mental attitude in the matter. A careful analysis of the testimony shows that she did nothing of the kind. On the contrary, she prefaced her request by a reiteration of her original position. She did not in any way disclose, make manifest or give him reason to believe that he could overcome her original fixed determination not to
Looking at this meeting at the ferry from all standpoints, we can discover nothing that altered the legal status of the parties to this suit. The rule in this class of cases is laid down in the case of Hall v. Hall, 60 N. J. Eq. 469; 46 Atl. Rep. 866. The opinion in this case by Chief-Justice Gummere holds: “That a desertion, in order to be obstinate, must be persisted in against the willingness of the injured party to have it concluded is declared by all our cases; and, ordinarily, when the husband has, by his conduct toward his wife, contributed in any degree to, her original desertion, the law requires that he should evidence that willingness by making such advances or concessions to his wife as might be reasonably expected to induce her to return to him.
“But the law does not impose this duty upon the husband in every case arbitrarily and without regard to the facts and circumstances by which it is surrounded. The husband is bound to make such advances and ■ concessions only where there is reasonable ground to suppose that such action on his part will terminate the wife’s desertion. Where it is manifest from the circumstances under which the desertion took place, or from her temper and disposition, or from any other fact in the case, that honest effort on the husband’s part to terminate the separation would be unavailing; or, if successful in bringing the desertion to an end, would be so only temporarily, the duty of making it does not exist.” See, also, Rogers v. Rogers, 81 N. J. Eq. 479.
In the light of the above opinion, we conclude that the petitioner was justified in refusing a private interview, which, while
The above views lead to a reversal of the decree below and the granting of a final decree of divorce to the petitioner and the appellant.