Pierson v. PiersonPierson v. Pierson
- Reporters:
- , ,
- Before:
- Herr
This suit is brought by the wife for divorce for the alleged willful, continued and obstinate desertion of her by her husband for a period of more than two years, commencing on May 4th, 1931.
Prior matrimonial litigation between the parties in this court resulted in the entry of a final decree on December 13th, 1934, dismissing the husband’s petition for divorce and granting separate maintenance to the wife (although the proofs showed that she was not entitled thereto on the merits), upon the husband’s consent that such decree be made. The decree was affirmed on appeal. Pierson v. Pierson, 119 N. J. Eq. 19;
While the decree did not expressly adjudicate that the defendant, without any justifiable cause, had abandoned his
Although personally served with process in the present suit the defendant defaulted, and the case was referred ex parte. On the hearing substantially the same evidence was presented on petitioner’s behalf as that presented by her in the earlier litigation. This evidence, undisputed, would have warranted and indeed required the entry of a decree for divorce in petitioner’s favor in the present suit, but the court ordered that a defense be made and appointed a solicitor for that purpose, under authority of section 18 of the Divorce act. P. L. 1907 p. 480 § 18; 2 Comp. Stat. p. 2034; Feichert v. Feichert, 98 N. J. Eq. 444, 448;
Upon the evidence so presented on both sides it is apparent that the separation has not been against the will of the petitioner. The element of obstinacy is lacking. It is sufficient to refer to the opinion filed in the prior proceedings (119 N. J. Eq. 19), which summarizes the evidence and points out that since their separation in the year 1931 the wife’s attitude toward her husband had been consistent only with a desire to be rid of him. There has been no change in their relations since that time. In short, upon the evidence, there is no doubt that the wife’s present petition for divorce should be dismissed.
Petitioner’s counsel contends, however, that the court must grant her a decree of divorce, in spite of the fact that the
Our reported decisions touching this question fall into two main classes, one where the prior maintenance suit was tried on the merits and the decree rested upon the evidence and not upon consent; the other where the decree was consented to. In the first class are included Smith v. Smith (Court of Chancery), 55 N. J. Eq. 282;
The second class includes Oertel v. Oertel (Court of Chancery), supra, in which, as in the Scotland Case, supra, the subsequent proceedings sought the vacation of the earlier decree, not a divorce; Willis v. Willis, 99 N. J. Eq. 486;
It appears therefore that there is no authority in our books which goes to the extent of holding that this court must, contrary to the evidence, recognize a consent decree for separate maintenance as res judicata of the fact of desertion in the wife’s subsequent suit for divorce on that ground, and thoughtful consideration of the question has convinced me that such effect ought not to be accorded to the earlier decree under the circumstances here presented, for reasons presently to be discussed.
The practice of entering separate maintenance decrees upon consent is well established, and there certainly can be no objection to the husband’s waiver of defenses in such a case. The sole purpose of the suit is to liquidate into a money decree the husband’s common law obligation of support. Adams v. Adams, 80 N. J. Eq. 175, 180;
It is quite another matter, however, to give to a decree for maintenance, especially a decree based upon consent only, the effect of a final adjudication that the husband has deserted his wife, and to make such adjudication the basis of a subsequent decree for divorce. In my judgment the res judicata rule should not be so applied, for several reasons: (1) Where the decree for maintenance is based upon consent only, the public policy that no divorce shall be granted upon the consent of the parties is subverted. (2) Even where the decree is based upon evidence the requirement of corroboration in
1. Divorce by consent. If the adjudication of an abandonment in a decree for maintenance based upon consent only is to be regarded as res judicata of the fact of desertion in a subsequent suit by the wife for divorce for desertion, what is to bo said of the fundamental public policy that no divorce shall be granted upon the consent of the parties? Suppose husband and wife both desire to be divorced, but neither has ground. By simply filing a bill for separate maintenance, procuring a consent decree without evidence, and then after the lapse of two years bringing suit for divorce for desertion, in which the husband defaults, is the wife to be permitted to have a decree for divorce by the mere production of the earlier decree for maintenance and proof that since its entry the separation has continued and that the husband has failed to make just advances? The court cannot know that the proceedings amount to a scheme to secure a divorce by consent and upon a fictitious ground, and if the doctrine of res judicata is to be applied, is compelled to grant the decree without further proofs. Or suppose the parties be impatient of delay, could they not avoid it by inserting a clause in the consent decree fixing as the time of the alleged abandonment a date two years or more prior to the date of its entry, or by framing the maintenance proceeding as for a constructive abandonment based upon the defendant’s alleged adultery (Suydam v. Suydam, 79 N. J. Eq. 114;
It is fundamental and axiomatic in our law that an action for divorce is sui generis, in that the state, represented by the court, is a party. Grant v. Grant, 84 N. J. Eq. 81;
The interest of the state is not adverse to the granting of a maintenance decree, but where, as in the instant case, it is sought to give to a maintenance decree, based solely on consent and not justified by the evidence, res judicata effect in a subsequent suit for divorce brought by the wife, the interest of the state is obviously involved to prevent the granting of a decree of divorce. The state was not a party to the maintenance suit, but it is a party to the divorce suit. How then can the rights of the state in the divorce suit be foreclosed by the decree in the maintenance suit ? On what sound principle can the interest of the state be adversely affected by a decree strictly inter partes? To allow res judicata effect to the earlier decree under such circumstances is to sanction divorces by consent, in contravention of the public policy of the state.
2. Gorroboration in (divorce suits. In another respect the public policy is defeated by the application of the doctrine of res judicata in such circumstances, and that is by the avoidance of the requirement of corroboration in divorce cases. Since the maintenance suit is strictly inter partes, corroboration is unnecessary. The complainant may secure a decree upon her uncorroborated testimony, even when the husband actively defends, if the court credits her testimony. Pinkinson v. Pinkinson, 92 N. J. Eq. 669;
The tendency of the earlier cases was to import into divorce litigation, the sui generis nature of which was not fully appreciated, general rules and principles developed in suits strictly inter partes. Equitable maxims and defenses crept in. Principles of estoppel both equitable and legal were applied, among them the res judicata doctrine, with results that were not always fortunate. In my judgment, such general principles may properly be invoked in working out equity between the parties only so long as the public policy is not defeated thereby, and should never be permitted to operate in such wise as to break down the safeguards which the law has set up to protect the institution of marriage. The more recent tendency of this court has been to decline to apply principles of estoppel in divorce litigation where their application would have such effect. See, for example, Hollingshead v. Hollingshead, 91 N. J. Eq. 261, 263;
3. Abandonment and desertion distinguished. In divorce suits based upon desertion, such as the instant case, there is a further objection to the court’s blind acceptance of the prior adjudication of abandonment as res judicata of the fact of the alleged desertion, and that is that “abandonment” and “willful and obstinate desertion” are not always synonymous terms. To put it more accurately, “in case a husband, without any justifiable cause, shall abandon his wife or separate himself from her” he is not necessarily guilty of a willful and obsti
This view was again approved by the court of errors and appeals in Dummer v. Dummer,
It is only by such construction of the statute that the distinctions worked out by the later decisions of our courts can be rationalized. Among such distinctions the following may be pointed out: While a constructive abandonment based upon extreme cruelty has been hold to be the same as a constructive desertion based upon the same ground (Locher v. Locher, 112 N. J. Eq. 25, 27;
Another distinction has developed in cases where a husband has been held guilty of abandonment under section 26 of the Divorce act notwithstanding the mandate of a New York decree a mensa forbidding the cohabitation of the parties. Freund v. Freund, 71 N. J. Eq. 524;
The fundamental distinction between these two concepts has been more clearly worked out in the later cases, following Vice-Chancellor Van Pleet’s statement of the purpose of the maintenance statute (Weigand v. Weigand, supra), in which the parties have been and have continued to be separated by consent. Obviously, in such circumstances there cannot be a statutory desertion. But there may be an “abandonment” although the separation originated and continued by the consent of the parties. Thus in Barefoot v. Barefoot, 83 N. J. Eq. 685;
In the case of Segal v. Segal, 104 N. J. Eq. 457;
These cases define the offense described in the maintenance statute as consisting in the husband’s failure or refusal to maintain and provide for his wife as long as he is under legal obligation to do so, the extent of such legal obligation being fixed by the statute in the terms of the common law. If the husband consents to the separation he remains liable for the wife’s support unless he can show “justifiable cause” for the separation, that is unless he can show that his wife has been guilty of a matrimonial offense. Dinnebeil v. Dinnebeil, 109 N. J. Eq. 594, 596;
“Our decisions hold uniformly that alimony is a subject specifically committed to the court of chancery and arising from the present or past status of the parties as husband and wife. The jurisdiction not only exists while that relation persists, but by the express language of the Divorce act (Comp. Stat. p. 2035 § 25) continues after decree of divorce.”
In Second National Bank v. Curie, 116 N. J. Eq. 101;
“We take the view that the agreement in these aspects was in its essence and purpose an agreement for the reasonable and suitable support of the wife_ according to her station and according to her husband’s means and ability to support her, and that it comes therefore under the general class of agreements for maintenance where husband and wife are living apart and, as such, is subject to the control of the court of chancery, but not by way qf specific performance. Apfelbaum*129 v. Apfelbaum, 111 N. J. Eq. 529. The agreement itself may be regarded by the court as evidential with regard to the amount of money to be paid, though not controlling in that regard.”
Still more closely in point is the case of Aiosa v. Aiosa, 119 N. J. Eq. 385;
Again in Phillips v. Phillips, 119 N. J. Eq. 462;
Thus it seems clear that by its most recent pronouncements our court of last resort is adhering to its own earlier views expressed in the Weigand, Hummer, Barefoot and Segal Cases, supra, and is reaffirming the broad construction of section 26 as affording a remedy where the wife is living separate and apart from her husband with his consent. We are not here concerned with the question whether specific performance is the proper remedy for the enforcement of a husband’s contract to support his wife. (As to this, see Cohen v. Cohen (Court of Chancery, not yet officially reported),
It is therefore apparent that the cause of action defined by the maintenance statute is essentially different from willful and obstinate desertion as contemplated by section 2 of the Divorce act. B Comp. Stat. p. 2024. How then can it arbitrarily be said that a decree for separate maintenance is res judicata of the fact of desertion in a subsequent suit by the wife for divorce on that ground ? It may be that the evidence upon which the prior decree is based is such as to warrant a decree for divorce for desertion, given the two-year period of continuance, or that one or more of the facts in issue in the maintenance suit may come into issue in the subsequent divorce suit, and if so the prior adjudication may to that extent constitute an estoppel. To determine these questions the proceedings in the prior suit must be examined. Zweig v. Zweig, supra, and cases cited therein. But in view of the fundamental distinction between the two offenses, clarified by the more recent cases, how can it longer be maintained that the doctrine of res judicata, in its strict sense, can under any circumstances be applied arbitrarily to give a decree for separate maintenance controlling effect in a subsequent suit b3 the wife for divorce for desertion P
In the case at bar, since the evidence precludes the granting of a decree for divorce, the argument that the petitioner is entitled to such decree in spite of the evidence is in effect an insistence that this court is a mere rubber stamp, impotent to protect the interests of the state and powerless to perform its duty to decline to grant a decree of divorce where the evidence does not justify it. With such a view I cannot agree.
A decree will be advised dismissing the petition.