112 N.J. Eq. 25 | N.J. Ct. of Ch. | 1932
The husband sues for a divorce for desertion. The wife denies that she deserted her husband and, on the contrary, says that he deserted her, and by counter-claim seeks a divorce on this ground. The uncontested fact is that on May 14th, 1929, Mrs. Locher left her husband and has since then lived apart from him. She alleges that she was compelled to leave because of his ill-treatment of her, so that constructively her husband was the deserter. *26
The first question to be solved relates to the effect to be given to a decree in an earlier case between these parties. Shortly after Mrs. Locher left her husband, she filed in this court a bill for separate maintenance under section 26 of the Divorce act. Comp. Stat., p. 2038. He answered, the cause was heard and a decree on the merits dismissed the bill. The same acts upon which the wife relies in the present suit as constituting desertion by her husband, were pleaded by her in the former suit to constitute the abandonment. The causes of action in the two suits are not the same and so the decree is not conclusive upon every matter which might have been litigated in the former suit. But it is conclusive as to those matters within the issues and actually tried and decided. Nagle v. Conard,
When a wife leaves her husband, as Mrs. Locher left Mr. Locher, the occurrence may be interpreted in one of three ways: That she willfully deserted her husband; that his misconduct was such that the desertion was constructively his; that although the husband was not constructively the deserter, yet he consented to her going and so neither party willfully and obstinately deserted the other. Mrs. Locher attempts to meet her husband's charge, first by the affirmative defense that he was the deserter. Here the burden of proof is hers and the same corroboration and degree of proof is required to make out the defense as would be required to prove constructive desertion as a ground for divorce. Rogers v.Rogers,
The defendant also denies by her answer the charge of desertion, and so raises the issue whether Mr. Locher consented to the separation or whether her desertion was willful. The burden of proving the willfulness and obstinacy of the desertion is on the husband. Wilno v. Wilno,
Mr. Locher testified that he had no inkling his wife contemplated leaving him until, on the very day she departed, he came home about the middle of the day and found a moving *28 van in front of the house. He then besought her not to go, but she persisted. Afterward, for nearly a year, he frequently called on his wife and asked her to return. Mrs. Locher's version was different. She told of numerous disagreements of which the cause was friction between her and Mr. Locher's mother, and during which he often told her that he would be gladly rid of her. At last, in the middle of the night before she left, she resolved to acquiesce and told her husband she would go the next day.
Several considerations lead me to believe Mrs. Locher's testimony. In the first place, the separation of husband and wife is almost always the culmination of many quarrels and is preceded by repeated discussion of separation. That Mr. Locher should be unaware that his wife was thinking of leaving him, is contrary to the common run of events. Then there is this item of evidence: When the van was in front of the house and Mr. Locher asked Mrs. Locher not to go, she retorted in substance, as witnesses for both parties testify, "that is a funny thing to ask now." This reply is understandable if the two had agreed upon the separation the night before; otherwise its meaning is obscure. Again, on each occasion after the separation when Mr. Locher called on defendant and asked her to return, he took with him some third party to witness the request. He has been diligent from the first to build up a case against his wife. I find he acquiesced in the separation; that Mrs. Locher did not willfully and obstinately desert him.
One other question arises: the alleged desertion took place May 14th, 1929. The petition in this cause was filed two years and six days later, May 20th, 1931. For about six months between these two dates, Mrs. Locher's suit for maintenance was pending. If the months while that suit was pending cannot be counted as part of the period of desertion, then the petition was prematurely filed.
A wife who, in good faith, brings suit for absolute divorce, is justified in living apart from her husband pending the suit; her refusal to live with him cannot be counted as desertion. The principal reason for this rule is that by cohabitation, *29
she would condone his alleged offense and destroy her cause of action. Barbour v. Barbour,
The husband's petition should be dismissed. *30