63 N.J. Eq. 285 | N.J. | 1901
The opinion of the court was delivered by
The appellant, Pauline C. McGean, filed 'her petition in the court of chancery for divorce from her husband on the ground of desertion. The ease came on do be heard before the vice-chancellor ex parte, and his conclusion upon the proofs was that the petitioner had failed to show that she was, at the time of the filing of her petition and had been for two years preceding that time, a bona fide resident of the State of New Jersey. For this reason he refused a divorce.
■ Our examination of the evidence has led us to the conclusion that the question of the bona fieles of the residence of the petitioner is one of considerable doubt; but we find that she has failed to establish the desertion of the defendant, for the statutory period, by that quantum of proof which the law requires; and conclude that, for this reason, she was not entitled to a decree of divorce.
It appears from the testimony that the parties were married secretly on the 9th day of September, 1897, at which time they
The petitioner’s mother was examined as a witness in the case, and testified-as to some parts of the contents of the letter, which she said that she had read. Those portions, however, show no intent of the husband to desert his wife.
It is insisted, on behalf of the petitioner, that the conduct of the defendant, subsequent to October 1st, 1897, shows that he had no intention of ever resuming marital relations with his wife. Conceding this to be so (although I am unable to discover satisfactory proof of it in the testimony), it cannot benefit the petitioner. Her conduct in removing to this state on that day, with the avowed object of acquiring a residence here for the purpose of obtaining a divorce from her husband at the expiration of two years, and her steadfast holding to that, purpose up to the filing of her petition in this case, demonstrate that the separation was not' against her will, and consequently that the desertion was not an obstinate one, within the meaning of the statute. Moores v. Moores, 1 C. E. Gr. 275; Newing v. Newing, 18 Stew. Eq. 498; Hall v. Hall, 15 Dick. Ch. Rep. 469.
The decree should be affirmed.