107 N.J. Eq. 1 | N.J. Ct. of Ch. | 1930
I am convinced that the defendant has not willfully, continuedly and obstinately deserted the petitioner for the term of two years within the purview of the Divorce act, and because thereof I will advise a decree dismissing the petitioner's petition. The petitioner and defendant were married January 26th, 1902, and lived together as husband and wife for a period of more than twenty-two years. Two children were born of the marriage — Margaret Hopper McKee, a daughter, now upwards of twenty-one years of age, and William Noyes McKee, a son, now upwards of nineteen years of age. The petitioner is a professor of chemical engineering in Columbia University. He is also a consulting engineer. He alleges that his wife deserted him on January 13th, 1925. I deem it unnecessary to advert herein to the facts and circumstances leading thereto. It will suffice to say that the wife considered herself aggrieved by the acts and conduct of *3
her husband toward her, and particularly by acts and conduct immediately preceding the date of the alleged desertion. In October, 1925, she instituted a suit against her husband in the New York supreme court for a limited divorce, basing her action on the ground of extreme cruelty, and therein prayed for an allowance for her support. Said proceeding was at issue and came on regularly for hearing in January, 1927, when, as a result of conferences and negotiations between the parties themselves, and their respective attorneys, said suit was discontinued, and a "United Family Agreement" bearing date January 24th, 1927 (copy of which is annexed to the defendant's answer and marked schedule A) was entered into between said parties. Provision was made therein for the wife's support. Paragraph 3 of said agreement provides that both parties shall discuss "their family affairs and in particular the possibility of a united family at least once in each six weeks." The parties had many meetings subsequently. At the time of the alleged desertion the parties resided in New York City. Petitioner alleges that on February 25th, 1925, he took up his residence in New Jersey. The defendant has questioned herein the bona fides of the petitioner's residence in this state. The proofs herein satisfactorily establish, in my judgment, that the petitioner has been a bonafide resident of New Jersey since February 25th, 1925. His suit was commenced November 13th, 1927. It is urged in defendant's behalf that the period of time between October, 1925, when she instituted her aforesaid suit against her husband in the New York supreme court for a limited divorce on the ground of extreme cruelty, and January 24th, 1927, when such suit was discontinued, cannot be computed as part of the period of defendant's alleged desertion. I am in accord with the defendant in such respect. In view thereof I am of the opinion that the petition herein was prematurely filed. The New York suit interrupted the continuity of the period of the defendant's alleged desertion of the petitioner. Ordinarily, cohabitation is proof that the treatment of the wife by the husband is not cruel, and is usually of itself a contradiction *4
of that which the wife must, in such cases, establish, namely, a condition of such extreme discomfort and wretchedness as incapacitates her to discharge the duties of a wife, or seriously endangers her health. Weigel v. Weigel,
I will advise a decree dismissing the petition.