83 N.J. Eq. 571 | New York Court of Chancery | 1914
On August 17tli, 1912, the petitioner filed his petition for divorce a vinculo, in which he alleged that he cohabited with his wife until June of 1906, when she deserted him, and that for more than two years then last past, her desertion bad been willful, continued and obstinate. The cause was undefended, and upon the report of the master to whom it was referred, a decree nisi was entered January 17th, 1913, and on July 18th following a final decree of divorce was signed. On November 18th of the same year, before the decree was actually enrolled, the defendant filed _her petition praying that the final decree be vacated, and that she be permitted to defend, on the grounds of surprise and' merits, in which she sets up that she was deprived of her defence by the fraudulent representations of her husband and that the decree was procured by false testimony imposed upon the court. An order to show cause issued, an answer was filed, and on the day set for trial the parties and their witnesses were heard in open court.
The petitioner and defendant were married in 1886, and lived together as husband and wife until June of 1906. At that time they were living in Camden. During the previous fall, their daughter, a young lady, had been sent to Swarthmore College for a four-year course. She was in delicate health, and for her better protection and comfort the defendant planned to move to the college town. While her husband was in Denver, Colorado, she wrote to him of her intentions, and he replied- under date of January 22d (1906) :
“Anna:
“Tour letter received this a. m. I am very sorry to hear that the children are not well and I am especially anxious about Edna. It might be wise for her to see Dr. Snader, 1919 Arch St., and have him make a thorough examination, particularly of her lungs, and prescribe for her. I have great faith in his ability. In regard to your going to Swarthmore to live, if it will contribute to your happiness or the health of the children it has my entire approval. It might be a good plan for you to consult an agent, as such a person would be more familiar with existing conditions and have knowledge of any opportunities to rent or buy. I expect to be engaged here for some time yet, and cannot say how soon I will be able to go east.
‘Tours,
“Witt.
“Dear Will:
“* * * j suppose you would like to hear of our experience the other day at Swarthmore. Mrs. Keller, Willie and I started about twelve o’clock from Hamilton Court. We went to their country place, got Bill, the work horse. We went all over Swarthmore and saw only three houses that we cared for. Two was out by Strathaven Inn. One is Graham’s house, which is $15,000, and the one adjoining it is $11,000. Now Will, I am afraid to mention the other one because it is so high in price, but it is an ideal house. It adjoins the college grounds and it has every convenience. I went to see the agent yesterday. His office is at Thirteenth and Chestnut. J. T. Jackson is his name. When you come home you can go and see him if you like.”
She closed the letter with a love message from the children and herself. Upon the petitioner’s return to Camden, he negotiated with the owner of the Graham house and purchased it for $12.-000, on April 19th, 1906, placing the title in his wife’s name. He paid down $5,000 in cash, and with his wife executed a purchase-money mortgage for the balance. He made extensive alterations to the house, which he personally supervised; purchased rugs and furniture, which he and his daughter selected; paid for the moving of the household effects; made alterations and repairs to the house until recently, and, up to the time of this application, paid, the taxes on the property, interest on the mortgage, water rents, electric light bills, telephone bills, besides sending to his wife a weekly allowance of $32.50, which was increased to $35 in the spring of 1913, and to nis children each a monthly allowance. In December of 1909, and January of 1910, ho purchased, in the name of his wife, additional ground adjoining the Swarthmore home. Tn all he spent on the property and in supporting his family the s\un of $41,500. In the month of June, 1906, the petitioner again went west, and the other members of the family to Atlantic City for the summer, as had been their custom. He returned in the early part of July, and again went to Denver the latte]' part of August. During this period he made the arrangements for improving the house and for its
The testimony taken before the master persuaded him to report that while the petitioner was iu the west, the defendant, without his consent or knowledge, went to Atlantic City, where she remained until the month of September, and that during the latter part of the month of October, or the early part of November, 1906, the defendant packed all of her belongings and caused them to be removed to Swarthmore, in the State of Pennsylvania, without the consent or knowledge of the petitioner, at which latter time the defendant deserted the petitioner. And further, that
“The petitioner visited the house where the defendant was living, in Swarthmore, a number of times, and there saw his children; that the defendant, from the testimony shown, avoided meeting her husband, the petitioner, and at other times purposely absented herself from her home in Swarthmore, when she knew that her husband was coming to her home; that defendant stated that she would not return to Oamden to live with the petitioner, and it is evident to my mind that the defendant fully intended to desert her husband when she moved from Oamden, New Jersey, to Swarthmore, in the State of Pennsylvania.”
The petitioner had testified that he lived with his family at 107 North Seventh street,, in Camden, until the 15th of June, 1906; that prior to that time he and his wife had several altercations; that on one or two occasions his wife had told him that she would not continue to live in Camden; that he had told her that he could not live anywhere else; that his business required him to live in that city. On June 15th he was obliged to go to Colorado. He returned in seventeen or eighteen days, and then went to his home where he expected to find his wife and children. The house was closed up, and he was informed that they had gone to Atlantic City. He did not see her during the summer, for the reasons stated by him, that he believed she
Testimony was given by two colored servants of the petitioner, his stenographer and a plumber employed by him to do work at the Swarthmore house. One of the servants said that he heard Mrs. Jones say that she would not live in Camden; that she was going to Swarthmore to live. The other, that whenever the petitioner called at the Swarthmore house, the defendant would seem to know it, and on several occasions told him, “Mr. Jones is coming; I am going to Philadelphia;” and that the defendant told him on two or three occasions that she would never live in Camden again. The stenographer testified that Mrs. Jones wanted to move to Swarthmore on account of her daughter going to college, and that in the spring of 1906 the defendant was at the petitioner’s office to talk about the purchase of the Graham house. Mr. Jones told her that he was perfectly willing to do anything that would add to her happiness and malee her comfortable, but that she knew'.he could not live in Swarthmore, and that the defendant said that that was the house she wanted, and that she intended going there and that
“her tone conveyed the idea that she was ■ determined to go to Swarthmore to live, and it did not make any difference whether he intended to go or not, or whether he could go. She did not say those words, but that was her tone of voice.”
The plumber related that on one occasion, when the petitioner telephoned to his daughter, he heard the defendant say to the daughter that if her father came she would lock herself in a room so that he could not see her, and that at different times when he was working there he noticed that the defendant seemed to avoid her husband.
The corroborating testimony is fragmentary and equivocal, and was evidently moulded to give color to the petitioner’s story. Tn the further discussion it need not be commented upon, except as the history of the case explains the true meaning of the defendant’s action and of what the witnesses said Mrs. Jones from time to time stated.
Although the. defendant had gone to the home her husband had provided for her, the petitioner, without relating this important fact to the master, averred, as he did afthe present trial, that it was not until then that he knew that she had deserted him. He pretends to have based this belief, principally, upon what he asserts to be the fact that his wife took with her everything, leaving only rubbish and the marriage certificate hanging on the wall. A disdainful abandonment of this token of their union might be significant if there were not other and controlling circumstances which were not brought to the master’s at
But, aside from this, it 'is quite clear to me that the petitioner’s explanation of this metamorphosis of a temporary separation (if it was that) to a permanent desertion, is an absurd prevarication. Domestic discord of a repressed character prevailed for some time before the separation. There were no violent contentions or outbreaks of passion; on the contrary, the manner of the two towards each other was gentle and polite, but cool. Some six months previous she had left his bed, because of an indignity, with which situation he was apparently content. Had he made the least advance, she doubtless would have rejoined him. He was generous in his money affairs and considerate of his wife’s comfort and -welfare. She, on the other hand, was complacent and hopeful. Their demeanor towards each other was an absolute contradiction of their sentiments. It’s the familiar story of the husband tiring of his wife. She had lost her charms for him. Her personality and presence became intolerable. He was willing to provide, but-not to embrace. Whether he had found solace elsewhere, is not clearly shown, but it does appear that later he lived in Overbrook, Pennsylvania, much of his time, in a family in which there -was a daughter to whom he did not deny he paid attention. Before going west, in June of 1906, he told his wife that he would never return to the
That when the Swarthmore proposition was first broached, the-petitioner refused to go there with his famity, and that he told his wife, as he says, it would be impossible because of his profession, may be true, but that ho was willing, if not anxious, that they should go, is also true. Yainly did he try to explain away the significance of the purchase and furnishing of the house. He protested vigorously and emphatically, he says, but, nevertheless, bought, because his wife, unknown to him, had entered into-negotiations with the owner who threatened suit, and that he-completed the bargain to avoid trouble, or, as counsel argued, out of self-respect. How impossible of belief this is, when we consider that the petitioner admitted on the hearing, that by the letter of January 22d he intended that his wife should select a house at Swarthmore for her home; that by her reply letter she informed him that she had looked at the Graham house; that she had spoken to him about purchasing it, at his office in the presence of his stenographer; and that he bargained with Graham and obtained it for $12,000 instead of $15,000.
The petitioner’s testimony before the master, that he sought his wife with a view to a reconciliation, and that she evaded his efforts, is even more reprehensible. Upon his return from Denver, in July, 1906, he knew that his family was on its annual summer outing. He neither called upon, nor communicated with, his wife, and his reason for this, as given to the master- — - that he believed that she had gone away in one of her fits of anger and that it was best to leave her alone, and that she would get over it and would return to her home all right in the fall — ■ in the light of the circumstances as they were developed at this
The enforced absence or seclusion of the defendant whenever her husband appeared at the Swarthmore house, accounts for the testimony of the plumber and the colored servant. If she ever stated that she would never live in Camden again, as both colored servants say she did, but which the defendant denied, her declarations were perfectly consistent with her apprehensions that her husband was permanently estranged.
Process was served upon, the defendant while she was summering at Atlantic City. The surprise and shock made her ill. The next day the son went to see his father and informed him of his mother’s condition. He returned with a message to his mother that he had seen his father; that he was sorry that the matter had upset her so, and that he had said she should not worry any
The petitioner himself interpreted the 'meaning of these messages as carrying an assurance ihat the suit would be withdrawn, but he denies the assertions of his son and daughter that he initiated them. To his son, whom he admits asked him whether the defendant would have to go to Trenton, he said he replied:
“It isn’t for me to say what she has to do. Your mother has two courses open for her; one is to secure counsel, file an answer and fight the case; and the other is to refuse to do anything and, if she wishes, throw the papers in the fire. It is immaterial to me what she does.”
And to his daughter, who was very much agitated, he claims to have said: “Don’t you worry; you can’t help' this. It is not your fault. You go on your trip and enjoy yourself.” The petitioner is supported in' this statement by his stenographer, as to what he claims to have said to Ms son. But her exquisite recollection of what occurred a year and a half before, and which she described in the precise language used by her employer, impressed me at the trial that she had been coached. I believe the two children. I am convinced that they told the truth. What possible motive could they have had to bear false information which they must have realized would deceive their mother and aid in the wrongful purpose of their father? Why should the
From the foregoing review of the evidence it is manifest that the defendant has abundantly shown merits, as well as surprise, and that she is entitled to be protected by opening the decree, in order to admit her defence. Miller v. Rushforth, 4 N. J. Eq. 174; Brinkerhoff v. Franklin, 21 N. J. Eq. 334; Day v. Allaire, 31 N. J. Eq. 303; Richardson v. Richardson, 67 N. J. Eq. 437; White v. Smiths 72 N. J. Eq. 697.
There is another consideration which requires that this decree be vacated. The state is an interested party to the suit. Its interests have been imposed upon by the malevolent conduct of the petitioner, and public policy demands that its rights be vindicated.
It is urged that the defendant is in laches, because, as it is argued, she was careless In relying upon her husband’s promise,
The enrollment will be vacated and the decrees opened. On this hearing the main cause was retried. Both parties presented all of the evidence available on final hearing; and having reached the conclusion that the defendant was not guilty of desertion, the petition of divorce will be dismissed, with costs, unless the petitioner, on the settling of the decree, shall represent that he has further testimony, to be offered on final hearing.