15 N.J. Misc. 117 | New York Court of Chancery | 1937
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; 185 Atl. Rep. 25.
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; 131 Atl. Rep. 576. The solicitor so appointed filed an answer denying the allegation of desertion, and by agreement the defense has been presented by stipulating into the present case the evidence taken on the defendant’s behalf in the prior proceedings.
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; 37 Atl. Rep. 49; Lake v. Lake (Court of Chancery, not officially reported), 89 Atl. Rep. 534; Scotland v. Scotland (Court of Chancery), 96 N. J. Eq. 49; 124 Atl. Rep. 608, and Popovics v. Popovics (Court of Errors and Appeals), 98 N. J. Eq. 3,50; 129 Atl. Rep. 126. In my judgment none of these cases are in point, for the reason that in all of them the prior decrees were based upon evidence. The significance of the distinction will presently be discussed. The Scotland Case is out of point for the further reason that there the subsequent proceeding did not seek to secure a decree of divorce, but merely to vacate; the earlier decree.
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; 133 Atl. Rep. 529; affirmed, 101 N. J. Eq. 312; 137 Atl. Rep. 920, in which the decree recites that the issue of abandonment was “heard on bill, answer, replication and oral proof's in open court,” so that it apparently rested upon such proofs rather than upon the consent of defendant’s solicitor endorsed thereon, and in which the subsequent suit for divorce was brought by the husband, not by the wife as in the instant suit, so that the application of the res judicata rule was directed toward defeating the prayer for divorce rather than in aid of it: and Holst v. Holst (Court of Chancery), 101 N. J. Eq. 682; 139 Atl. Rep. 333, in which the court examined into
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; 83 Atl. Rep. 190. See Maloney v. Maloney, 12 N. J. Mis. R. 397, 408; 174 Atl. Rep. 28. The state has no interest in discouraging the husband from acknowledging his obligation; on the contrary, its interest lies in securing proper maintenance for the wife and children. This can be accomplished effectually by a decree for maintenance, in which the allowance is fixed by the court, or if agreed upon approved by the court, and modified from time to time by the court to fit the changing circumstances of the parties. So long as the effect of such decree is confined to the matter of support there can be no sound reason for declining to rest it upon the husband’s consent.
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; 80 Atl. Rep. 1057) or upon the defendant’s alleged extreme cruelty as of a date six months before? What impediment would there then be to the filing of the divorce petition immediately after the entry of the consent decree, and to the wife’s securing her decree for divorce without evidence of the alleged offense other than the production of the record of the maintenance suit ?
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; 92 Atl. Rep. 791. Divorce based upon mutual consent is contrary to
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; 113 Atl. Rep. 143; Shore v. Shore, 96 N. J. Eq. 661; 126 Atl. Rep. 320. In suits for divorce, on the other hand, public policy requires that there be corroboration of the petitioner’s testimony in every essential particular. Such has always been the invariable requirement, so universally applied as to need no citation of authority. If a prior maintenance decree is to be the basis of a subsequent decree for divorce, what becomes of the rule that a decree for divorce can never be predicated upon the uncorroborated testimony of the petitioner? It is true that
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; 110 Atl. Rep. 19.
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, 41 Atl. Rep. 149, 160. And see Baumgarten v. Baumgarten, 107 N. J. Eq. 274, 280; 151 Atl. Rep. 606. At common law the husband is liable for the support of his wife while the parties are living separate and apart with ihe husband’s conseni. Buttlar v. Buttlar, 57
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; 163 Atl. Rep. 251), yet a constructive abandonment based upon adultery may be quite different from a constructive desertion based upon adultery: a constructive abandonment may be predicated upon adultery committed anywhere (Suydam v. Suydam, supra), whereas a constructive desertion cannot be predicated upon adultery unless it was committed within the matrimonial home. Lake v. Lake, 65 N. J. Eq. 544; 56 Atl. Rep. 296, and cases cited.
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; 63 Atl. Rep. 756; affirmed, 72 N. J. Eq. 943; 73 Atl. Rep. 1117; Tehsman v. Tehsman, 93 N. J. Eq. 76; 114 Atl. Rep. 320; affirmed, 93 N. J. Eq. 422; 117 Atl. Rep. 34; Reik v. Reik, 101 N. J. Eq. 523; 139 Atl. Rep. 385; affirmed, 103 N. J. Eq. 23; 141 Atl. Rep. 921. Under like circumstances a desertion under
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; 93 Atl. Rep. 192, the court of errors and appeals affirmed this court in ordering temporary maintenance in a case in which the husband had consented to his wife’s departure from their home. The court said in its opinion in that case: “[the husband’s] legal duty to support his wife does not cease by reason of her absence from his home at his instance or with his consent. It is only when he desires her presence in his home that her presence in that home can be made a condition precedent to his obligation of support. Until it is made to appear that the wife’s absence from her husband’s home is without the husband’s co-operation or consent or is against his will, the issue as to whether the husband has by his conduct sacrificed his right to her presence in his home is not a live issue. * * * Should he in good faith seek her return, it may afford a ground for terminating alimony pendente lile, but until such time his failure to support her is an abandonment within the purview of our statute, in the absence of evidence that her original departure from his home or her continued absence has been under circumstances and of a nature to relieve him of the obligation of seeking her return. * * * When a wife resides away from her husband with his consent the husband’s obligation to support her continues.”
In the case of Segal v. Segal, 104 N. J. Eq. 457; 146 Atl. Rep. 189, the husband separated himself from his wife with
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; 158 Atl. Rep. 475; McLean v. McLean, 104 N. J. Eq. 208; 144 Atl. Rep. 583. The law favors the continued cohabitation of the parties, and the husband’s consent is not to be deemed justifiable cause for the separation. Nor is the wife’s consent thereto justifiable cause, nor docs her consent absolve the husband of his duty to maintain her. One qualification must be added to what has just been said respecting “justifiable cause,” and that is that while at common law the husband is under obligation to'support his adulterous wife until he divorces her (Whittle v. Schlemm, 94 N. J. Law 112; 109 Atl. Rep. 305; Tomkins v. Tomkins, in Miller v. Miller, 1 N. J. Eq. 386, 391), our cases deny her relief under the maintenance statute (Sabbarese v. Sabbarese, lO4 N. J. Eq. 600, 602; 146 Atl. Rep. 592; affirmed, 107 N. J. Eq. 184; 152 Atl. Rep. 920; Seibert v. Seibert (Court of Chancery, not officially reported), 83 Atl. Rep. 230; Bradbury v. Bradbury (Cowl of Chancery, not officially reported), 74 Atl. Rep. 150; Piper v. Piper, 13 N. J. Mis. R. 68; 176 Atl. Rep. 345. Such denial may be firmly rested upon the application of the doctrine of unclean hands. It is not a disclaimer of the jurisdiction of this court under the statute to afford the wife a direct remedy under all circumstances in which such obligation is imposed upon the husband by the common law.
“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; 172 Atl. Rep. 560, the same court, following the Apfelbaum Case, in effect held that a wife who was living separate and apart from her husband without any cause of action for divorce against him, although she should not have been permitted to maintain an action for the specific enforcement of his agreement to maintain her, was entitled nevertheless to a decree for maintenance in this court. The court said:
“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; 178 Atl. Rep. 63, in which the husband and wife were living separate and apart by mutual agreement. On the authority of the Apfelbaum and Curie Cases the court held that the matter of the wife’s maintenance was subject to the control of the court of chancery, as having been specifically committed to this court because arising from the status of the parties as husband and wife.
Again in Phillips v. Phillips, 119 N. J. Eq. 462; 183 Atl. Rep. 220, a ease in which the wife’s suit for divorce was pending, the court of errors and appeals makes it clear that it regards the same rule as applicable whether the suit be for divorce or for separate maintenance, that is that in either case the wife’s support may be secured to her through the peculiar jurisdiction of this court (aside from decreeing the specific performance of any contract for support) to control the matter. Since the court has no inherent jurisdiction to decree alimony or maintenance (Freund v. Freund, 71 N. J. Eq. 524, 529; 63 Atl. Rep. 756; affirmed, 72 N. J. Eq. 943; 73 Atl. Rep. 1117; Hervey v. Hervey, 56 N. J. Eq. 424, 426; 39 Atl. Rep. 762), it follows that the remedies intended by the court of errors and appeals are those provided by sections 25 and 26 of the Divorce act.
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), 188 Atl. Rep. 244). The only point now made is that the ratio decidendi of the recent court of errors and appeals decisions is predi
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.
