44 N.J. Eq. 257 | N.J. | 1888
The opinion of the court was delivered by
This cause was heard in the court of chancery upon bill and answer, and cross-bill, answer, replication and proofs.
The original bill was filed by John A. Osborn, complainant, ■■against his wife, Catharine A. Osborn, for divorce, upon the ■ground of her adultery. Her answer denies the charge of adultery, and sets up, by way of cross-bill, desertion on the part of the complainant, and prays for a divorce from him upon that .ground.
The petition of appeal and the answer thereto put in question not only the propriety of the decree against defendant for adultery, but also the refusal of the court to award a divorce to her ■upon the ground of the complainant’s desertion.
Two questions are thus presented for consideration upon the proofs.
1 have carefully examined the testimony for evidence of adultery, but have failed to discover any. Adultery is not shown, ■nor are the elements of lust, lewdness, depravity or secrecy, the ■invariable concomitants of criminal conversation, to be found in the proofs. If we give to the testimony the construction most unfavorable to the defendant, a decree based upon adultery must rest upon one of two grounds: either that opportunity is tantamount to guilt, or that a deci’ee may rest upon a crime half proven, even though the half it rests upon is the half that is not proven.
Applying to the evidence in this cause the doctrine of the •decided causes in this state upon this subject, the decree below cannot be Sustained. Berckmans v. Berckmans, 2 C. E. Gr. 453; Larrison v. Larrison, 5 C. E. Gr. 100; Marsh v. Marsh, 1 Stew. Eq. 196; Franz v. Franz, 6 Stew. Eq. 483; Whitenack v. Whitenack, 9 Stew. Eq. 474 Belton v. Belton, 11 C. E. Gr. 449; Tate
The cross-bill proceeds upon the ground of desertion by the complainant. From undisputed testimony, as well as from his own admission, it appears that Osborn left his wife and family while they were living in Forty-ninth street, New York. After coming and going for a time, as his health or caprice suggested, he finally left them and took up his abode in Manasquan, where he remained until the filing of his bill in 1886, a period of nine years. Once, shortly after he thus absented himself, he returned to New York city, but went to the house of a relative, where for a short time he was ill. Hearing of his illness, his wife visited him, and as soon as he would consent she removed him to their house in Forty-ninth street. In his own testimony, complainant admits that she did this of her own accord and at her own expense. The same indication of her deportment toward him may be inferred from the fact that on this occasion she procured for him a carriage, furnished with pillows, for his more comfortable transportation. This conduct of the defendant, occurring after her husband had once left her, certainly negatives any unwillingness to have him return to their home. This attitude'of mind of the defendant is not rebutted by anything in the proofs, nor is there anything to show that Osborn, after finally leaving his wife, used any inducements, or even invitations, for her to follow him to the place where he was domiciled. After his convalescence, complainant, of his own volition, left his family, giving as a reason his ill-health. From that day to this, although he has lived within an hour or two of New York,, he has never made one robust effort to rejoin her, or even to find out whether she continued to dwell at the place where he left her, which, as a matter of fact, she did for a long time. His most vigorous attempt in .this direction, as detailed in his own testimony, came to a speedy collapse upon his ascertaining that it would involve a paltry expense. During these nine years, he has never contributed to the support of his wife or children, nor
Unless a wife, in addition to supporting her children, must séek out her husband who has willfully left her in a strange city, and induce him to return, this complainant has obstinately and continuously deserted this defendant for a period of nine years before the filing of the cross-bill in this cause, during all of which time' he was a resident of this state.
The result reached is that the decree of the court of chancery should be reversed, and a decree of divorce granted defendant on her cross-bill against the complainant for his desertion.
The record should be remitted to the court of chancery in order that a decree may be entered in accordance with these views.
For affirmance — Reed—1.
For reversal — Chief Justice, Depue, Dixon, Garrison, Knapp, Mague, Scuddbr, Van Syckel, Brown, Clement, Cole, McGregor, Paterson, Whitaker — 14.