45 N.J. Eq. 498 | New York Court of Chancery | 1889
This is a suit by a husband against his wife for divorce. The petitioner alleges that his wife deserted him in. June, 1885. He commenced his suit on the 6th day of July, 1888, and he charges, in his petition, that the defendant had, for three years prior to the commencement of his suit, willfully, continuously and obstinately deserted him. The case may be disposed of by the decision of a single question, and that is, has the petitioner shown •that the defendant willfully, continuously and obstinately de- • serted him- for the full period of three years prior to the commencement of his suit ?
The law as to what constitutes desertion is well settled. Chancellor Green, in Moores v. Moores, 1 C. E. Gr. 275—280, said: “To constitute desertion, the wife must absent herself from her husband of her own accord, without his consent, and against his will. * * * The simple inquiry [in such a case] is, has the wife, for the space of three years, absented herself from her husband without his consent and against his will ? If she has not, her desertion is not, within the contemplation of the law, willful and obstinate.” And desertion, to be ground for divorce,
Eor present purposes I shall assume that, at the time the parties separated, in June, 1885, the defendant left the petitioner fully resolved never to live with him again, and that her purpose then was to throw off all marital duty and allegiance to hirh, and to destroy the marriage relation which existed between them, and that this continued to be her purpose until some time in the Spring of 1888. The parties have four children, three daughters and one son. On the 30th day of June, 1885, an order was made by one of the justices of the supreme court, under proceedings on habeas corpus, giving the custody of the two eldest children to the father and the two youngest to the mother, and making provision that each parent should have access to-the children in the custody of the other. From the time of their
“Apbh 17 th, 1888.
“Aechie — I have been a long time making up my mind to write to you, for I don’t suppose you will take any notice of this, according to what you have said to Ettie and DeWitt, but I just made up my mind I would write and let you know how I felt. You can’t do any less than not make any reply, but then I will feel that I have done my part. I do know and feel that I said ■a good deal that has hurt your feelings, and I ask you, from the bottom of my heart, to forgive me. You must remember you have not done right in a good many things, and you told me, even three years ago, that you was sorry. And I will say I am sorry for everything I have done, although I don’t think you would think so hard of me if you had not listened to others so much. There is a woman that lives' close to you ; I think if it had not been for her things would have been different to-day. You may find that out some day. You -have said some pretty cutting things to me, when you say I put the devil in the children. God knows I love the girls as I love my life. I am willing to do anything for them, and I have never set Ettie or DeWitt up against you. J think they think as much of you to-day as they did when we was living together. They talk of you all the time. It seems to me the longer I am ■away from Mamie and Maggie the more I miss them. They seem so sweet to me now and I feel so proud of them when I see them; they are not out of my mind much of the time. Now, Archie, I am in no tight place, everything ■seems to go along all right, and I feel very much attached to the place, but I would sacrifice anything most to live with you and have the children all •together again. Now, I will make you a better wife than I have ever been,*502 if you have any love left for me. We will both forget, the past and live happy. If you will treat me nice I will promise to do the same to you. Now, will you please keep this letter and not show it to any one. If you have learnt to like any one else don’t let me step between you and that one, but God knows-I would like to have the girls. Now, will you answer this by letter or come-up. I will close by saying good night. “ Youb Wife.”
The petitioner received this letter very soon after its date.. He made no reply to it. He says, in his testimony, that he does-not know why he did not reply to it. After receiving the letter, he did not again visit the children in his wife’s custody until some three or four months after he had instituted this suit. He-does not pretend that he did not regard the letter as an honest and sincere expression of his wife’s mind and heart. If he had had the slightest doubt about her sincerity, and had not wanted her to remain away in order that he might -make her absence the basis of a suit for divorce, there can be little doubt that it would-have occurred to him that there was a very easy way for him to-put her sincerity to a decisive test, and that was for him to meet' her offer to return in the same frank and forgiving spirit in which it was made. I have no doubt as to the sincerity of the defendant’s offer. I believe that she wanted to return to her husband, and that she most earnestly desired that their broken home-should be restored. Her controlling motive in asking to be taken-, back may have been a- wish to do that which she believed would' best promote the happiness and welfare of her children; she testifies, however, that, between the date of the separation and the-time when she wrote the letter, her feelings towards her husband had undergone a change, and that she felt all she wrote. There-is, in her letter, the very highest evidence, in my judgment, of both that contrition and affection that the petitioner had a right,, under the circumstances, to either expect or demand. A husband has no right to require his wife, even when she is in the' wrong, to crawl back to him. It is his duty to take her back upon such terms as will permit her to preserve her self-respect. He must act the part of a just man, and if he refuses to make the advances to her which a just man ought to make in order to put an end to his wife’s desertion and allow her to return to his-
A divorce must be refused, and the petition dismissed, with costs.