88 N.J. Eq. 436 | New York Court of Chancery | 1917
There can be no doubt, I think, that the court of errors and appeals intended by their well-considered dicium to correct what possibly might be construed as a statement of divorce law made bv way of dictum in the opinion of Vice-Chancellor Emery, which opinion in all other respects the higher court adopted.
It follows from the application of this novel principle of divorce law promulgated in the Myles Case, for which no authority is cited, that a spouse can never in New Jersey acquire an absolute right to a divorce on the ground of desertion until his petition is filed. The guilty spouse (the deserter), after three or four years of willful, continued and obstinate desertion, may, the day before the petition is filed against him, by repentance and bona fide offers of reconciliation, &c., destroy what would have been a right of the deserted spouse to an absolute divorce if he could only have got his petition on file two days earlier.
I see no escape from the conclusion that if the dictum in the Myles Case is to be logically applied, the continuity of the willful and obstinate desertion during the necessary period of two years is broken-if the defendant becomes insane and irresponsible and is committed to an asylum before the suit for divorce is commenced, even though when insanity supervened there had been a completed period of two years of willful, continued and obstinate desertion.
In Hall v. Hall, 53 Atl. Rep. 455, 459; affirmed, 65 N. J. Eq. 709, 770, Vice-Chancellor Pitney, in dealing with an offer
“With regard to the writing of the love letter in May, 1900, that was two years after her desertion, and after the petitioner’s right to a divorce on the ground of desertion had matured and become vested.”
The decree advised by Yice-Chancellor Pitney was unanimously affirmed by the court of errors and appeals, and in the brief opinion of Mr. Chief-Justice Gummere we find the following statement:
“We concur not only in the conclusion reached by the YiceChancellor but in the opinion rendered by him, except that we find therein a somewhat inaccurate statement of a rule of divorce law which we think, should not be passed without notice.”
The opinion then proceeds to correct a statement of YiceChancellor Pitney which has no bearing upon the matter now in hand.
Thus the court of errors and'appeals expressly adopts thq opinion of Yice-Chancellor Pitney with a single exception, which need not be noticed, and thus approves the doctrine which until the decision of the Myles Case I think was regarded as settled beyond question, viz., that after two years of willful, continued and obstinate desertion the deserted spouse has a vested right to a divorce, can reject all offers of reconciliation, however sincere they may be, and notwithstanding that the deserting spouse after the two years of desertion became insane and was permanently confined in an asylum, file his petition and procure an absolute divorce.
If the principle carefully announced, although by way of dictum, in the Myles Case is correct, I see no escape from the conclusion that the defendant never committed any matrimonial offence which under the laws of New Jersey at the present time entitles the petitioner to a divorce.
(1) It will be observed that our Divorce act makes no distinction between the two matrimonial offences which constitute causes of absolute divorce. The statute declares that “divorces from the bond of matrimony may be decreed for the following causes:
“I. Adultery by either of the parties.
“1F. Willful, continued and obstinate desertion for the term of two years.”
The statute does not prescribe that the period of two years of desertion must be the two years immediately preceding the filing of the petition: this proviso is added by the rule laid down ip the Myles Case. The provision in section G pertaining to jurisdiction that in desertion cases one of the parties must lie resident in New Jersey for two years next preceding the commencement of the action, plainly does not warrant the inference that the term of two years of desertion which constitutes
As will appear hereafter in considering the Koch Case, infra, sections 6 and 7 of the Divorce act refer in terms to causes of action for divorce upon both grounds, desertion and adultery, as arising not only before suit is brought in New Jersey, but before the petitioner became a resident of the State of New Jersey,
(2) The statute, it seems to me, makes no distinction as to the remedy between the offence of adultery and the offence of willful, continued and obstinate desertion for two years. The offences of course are quite different in their nature. Condonation may be more easily obtained in one case than in the other. The moral duty to condone may more frequently exist in one case than in the other. The statute, however, as I read it, seems to place these two complete matrimonial offences on a par in respect to the rights and remedies which are accorded to the injured spouse.
(3) The text writers I think all agree that after the statutory period of desertion is completed, the deserter cannot by any course of conduct indicating repentance and desire to terminate the desertion, impair in any way the legal effect of the matrimonial offence which he has committed. Mr. Bishop says (1 M. D. & S. § 1775):
“When the desertion has continued the statutory number of years, the deserted party may rely on his acquired right and refuse to renew cohabitation. The refusal will not bar the divorce to which he has already become entitled.”
The authorities in this country and Great Britain are cited in a note.
In 1 Nels. D. & S. §§ 7-3-75, the authorities are cited for the doctrine that an offer to return “must be made within the statutory period.” In section 75 the author says:
“The door of repentance and return must be kept open during that period [the statutory period], but after the statutory time has elapsed the injured party has a cause for divorce. If such party refuses to renew cohabitation it is not desertion. For to renew cohabitation is to condone the offence and the law does not enforce condonation. This refusal of an offer to return will not bar a divorce to which the party is already entitled.”
The same principles are announced in 9 Am. & Eng. Encyc. 775 (see cases cited in note 3), and 14 Cyc. 620 (see cases cited in note 91).
(4) I have found no authority earlier than the Myles Case in this country or in England contained in any judicial opinion or text hook, which makes the slightest distinction in respect of remedies between the matrimonial offence of-adultery and the matrimonial offence of desertion, after the desertion has continued for the period prescribed by statute. I find no intimation that statutes similar to ours-not only prescribe the period of desertion but prescribe its continuance up to the time of commencing the suit for divorce on account thereof. The two offences of course differ: in the case of desertion two years of continuous misconduct on the part of the deserting spouse (which period is liable at any time to be arrested by a variety of courses), are necessary to constitute the complete offence, but after the offence of desertion has been once completed I have not discovered any suggestion prior to the Myles Case that the injured spouse has not the same vested right to a divorce which he would have had if the matrimonial offence had been adultery. If it may be said that the foregoing statements contain a peiitio principii because they assume that the matrimonial offence of desertion as defined by our statute may be completed before the suit is commenced, the propositions may be recast so as to make them affirm that there is no such matrimonial offence defined by our statute'as willful, continued and obstinate desertion for two years immediately preceding the commencement of a suit for divorce on account of such offence. Our statute in the same section and in one sentence names two offences which are grounds for divorce. One of these offences is fully defined by a single word, and the other by a single word with four qualifications. If the legislature had intended to add a fifth qualification which has been added by the dictum in the Myles Case, it would seem probable that it would have done so especially in view of the far-reaching effects of adding this qualification in large numbers of cases.
Thus it would seem that if a spouse deserted in another state remains a resident there two years, and then becomes a resident of New Jersey and remains such resident for two years, and then commences a suit for divorce, the two years to be examined are not “those immediately preceding the filing of the petition,” but those which immediately followed the separation in the foreign state, or immediately preceded the departure of the deserted spouse from the foreign state. If during the-whole period of separation' the injured spouse (the petitioner) has been a resident of New Jersey according to the dictum in the
In case the deserted spouse remained resident in the foreign state for the period of two years from the date of the desertion, and then moved to New Jersey, the question arises whether bona -fide offers of reconciliation on the part of the guilty spouse or his insanity could possibly have any effect upon the right which the injured spouse acquired to obtain a divorce, absolute or limited, as the case might be, on account of the complete matrimonial offence which arose in the foreign state.
The dictum in the Myles Case cannot, I think, be reconciled
(6) It is, I think, the settled practice to permit a defendant in a divorce suit to file a cross-petition praying for an absolute divorce on the ground of desertion, although the period of two years had not expired when the original petition was filed, the cross-petition being considered in many respects an independent suit. (See laws of 1916, chapter 57, page 102). Suppose a wife after two years of separation from her husband is about to sue him for an absolute divorce on the ground of desertion, but before she gets her petition on file she is sued by her husband in good faith for a divorce on the ground of adultery. The commencement of the husband’s suit makes it improper that the parties should live together and suspends the period of desertion. Recognizing the dictum in the Myles Case, can the wife succeed in her cross-suit on the theory “that the two years contemplated by the statute are * * * those immediately preceding the filing of the petition” of the husband, and not those immediately preceding the filing of the cross-petition? A logical application of the principle laid down in the Myles dictum would seem to abolish all cross-suits for divorce on the grounds of desertion where the original suit was brought in good faith.
I conclude, therefore, that it is my duty to follow and apply to this case the latest statement of the law coming from our court of last resort, such statement having been recognized and accepted as a part of our Divorce law in the decisions of the court of chancery above cited. As between the petitioner in this case and the defendant who defends by a guardian appointed by the chancellor, if the petitioner is to obtain an absolute divorce, 1 think it should be after a decision to that effect by the court of errors and appeals.
A decree dismissing the petition will be advised.
The foregoing opinion will be filed because I am notified that the petitioner is about to take an appeal. The substance of the opinion was stated orally to counsel, and the opinion was written before the case of Orens v. Orens, 102 Atl. Rep. 436 (88 N. J. Eq. 29), was reported. If the opinion in the Orem Case, liad been before me at the hearing, this opinion would have consisted of a few lines citing the authorities. After some hesitation T have concluded to file my opinion in its present form, inasmuch as I think counsel have a right to have it accord with my oral deliverance.