91 N.J. Eq. 435 | New York Court of Chancery | 1920
The petition is filed by the wife for divorce a vinculo for the cause of desertion. The preliminary jurisdictional requisites being sufficiently established, the issue turns upon whether or not thle circumstances disclosed by the evidence amount to a desertion of the statutory character, and whether or not those circumstances rest upon sufficient corroboration of the testimony of the wife.
The petitioner testified that defendant seduced her under promise of marriage, but refused to marry her, and only did so to avoid imprisonment after trial and conviction of the seduction, in the criminal court; that thle marriage took place in the city hall on June 30th, 1915 (none of the husband’s family attending except his father), and immediately after the ceremony she returned to the house of a Mrs. Noyes, where she was employed as a maid in domestic service, while her husband returned to the house of his parents; that they thus continued to live respectively until July 4th, 1915, when the time of her confinement was approaching and she left the Noj^es house and went first to her brother’s home and then, upon the advice of her sister-in-law; went to her husband at the home of his parents; that She stayed there with him for four or five weeks, leaving there on August 12th, 1915, to go back to her brother’s, where her baby was finally bom on September 23d, 1915.
After the birth of the child she returned to work and live at Mrs. Noyes’, staying there until a week or two after the child died, August 29th, 1916, leaving of filler own Volition to enter the service and residence of a Mrs. Owen, with whom she stayed about seventeen months, and then returned to the service and residence of Mrs. Noyes, where she still remained at the time of the hearing.
Her husband never came to see her, or communicated with her, nor did any of his family, either prior or subsequent to her few weeks’ stay at his father’s house, nor did ha or any of his family ever come to see the child or make any effort so to do— although hie and his father attended the church services at the funeral of the child and paid the expenses of the funeral. Dur
All of the foregoing is directly corroborated by other witnesses — chiefly defendant’s witness — and is not disputed.
Now as to the cause of the separation. Tlhle defendant’s father says that at the time of the marriage the husband was earning only $10 a week, and arrangements had been made by the father and son that the married couple should come and lire at thie home of the husband’s parents; that aifter the ceremony he heard his son say to petitioner, “Now we got married, now come down and lire with us,” but doesn’t remember her reply. It is easy to understand why the wife should hare been disinclined to go to lire at the home of the father who had aided his son in the endeavor to avoid the marriage he had promised, but we may assume that petitioner was not justified at that time in failing to go to lire with her hlusband at his father’s home. About a week after that she did go ’and take up her home there.
Her testimony as to the conditions of her life there and the reasons for her leaving is to the following effect: That none of the family would speak to her except the mother, who cursed her and called her a Whore; that she worked about the house doing everything but the cooldng; that the mother would not permit petitioners husband to speak to petitioner; that her room had only a bed and trunk in it; that the mother was mean to her and never satisfied with the work done by petitioner; that she was afraid to eat for fear the mother would poison her, and finally she overheard the mother tell the father that when the birth of tlhle child should occur she was not going to call a doctor or midwife or anyone, or even let any neighbors come in (this Was on the day she left), and on her telling this to her husband he told her that if she didn’t like to stay there she could go where she pleased, and he would do just as he pleased.
As to the father and mother, portions of their testimony are quite obviously false. A mere preponderance of verbal testimony is of course by no means controlling. The testimony must needs be such as can be believed. Daggers v. Van Dyck, 37 N. J. Eq. 130 (at p. 132); Whelan v. Osgoodby, 62 N. J. Eq. 571 (at p. 575). It is impossible to believe that the mother “liked” the daughter-in-law and that they were “good friends,” or that her room “was furnished better than the other rooms,”
I am entirely convinced therefore that the father and mother were continuously and actively hostile to petitioner, that the son was influenced in the same behalf by his parents, that the 'petitioner’s testimony of the treatment given her at the Horwath
I have dealt with the case thus far as one of constructive desertion, because it was upon that theory that the case was tried by counsel on both sides and their respective briefs submitted. It is. however, I tliiplc, obvious from all of the circumstances in the case, that resort need not be had to the doctrine of constructive desertion — that that which occurred was in fact actual desertion by the husband.
When the wife came to her husband at the Horwath home, she was provided with food and shelter — nothing more. The husband failed and refused to perform any other of his marital duties. Not only was there no sexual intercourse, but no intercourse whatever. He did not even provide her with clothing — the excuse being that she had caused so great an expense in the defence of the seduction proceedings that he could not afford it. It is clear that the husband intended to do nothing more than he was compelled to do — first, in the actual marriage, and second, in his relationship with her after marriage. He supported her, that is, he provided her with food and shelter, only because he was legally obliged to do so, and he did so in the least expensive way possible, namely, at his parents’ home; refusing his wife’s requests to provide a home and be a husband.
It need not be added that the desertion is none the less the husband’s act, because he may have been influenced thereto by Iris father and mother; nor need I point again to the corroboration supplied by the entire evidence in the case. It would indeed be the natural and probable thing to expect that the husband’s conduct, after such a marriage as this, with all its accompanying circumstances, would be just what transpired.
The only variation in the present case from such a desertion as occurred in the Raymond and Rector cases is that the wife did not remain in the same house with the husband throughout the entire period of desertion, but left after some four weeks. I cannot see that this is of the slightest materiality. If the married pair had had a separate home and the husband had deserted the wife by leaving that house, no one would contend that the wife must remain in the house until the desertion period should be complete, or that her act in leaving it after the desertion commenced would be any evidence of an acquiescence on her part in the separation. ■
The case sub judice presents no essential variation from this. The husband withdrew from and deserted the wife, although continuing to live under the same roof. To say that her subsequent departure from that house (even without the immediate actuating cause which occurred on the day of her leaving) evinces a consent to the separation, would in my opinion be an averment of a conclusiou without the slightest foundation therefor. To require her to stay in the same house and suffer the indignities offered her by the inmates thereof would be to require her to submit to insult as well as injury. That she found it too high a price to pay for her food and shelter is entirely natural.
The desertion was the husband’s act' — not hers. Having commenced it, the duty was upon him, not her, to terminate it. She was under no duty to make advances to him, nor to stay in
Hpon the question of his earnings, the only testimony was that of the husband himself — to the effect that he was working for the J. L. Mott Company on some kind of machine work, for nine and three-quarters hours per day at forty-two cents an hour, and his average wages amounted to $22.50 per week; that he lived with his parents and paid them $12 a week board. He has had seven years’ experience at his trade, and from his appearance and the well known conditions as to labor and wages obtaining at present, and for some time past, I am quite sure that he could earn more if he chose. The smallness of his wage and the large proportion paid to his mother for board indicate' an attempt to minimize such alimony as he might be required to pay, if his wife were successful in her suit. I am satisfied that he ean and should pay to petitioner the sum of $10 per week.
A decree will be advised in accordance with the foregoing.