59 N.J. Eq. 193 | New York Court of Chancery | 1900
The complainant was married to the defendant in August, 1876. They took up their residence in New Jersey on August 1st, 1883, having theretofore resided in Philadelphia, Pennsylvania.
The desertion complained of occurred on May 1st, 1895, at which time the complainant’s family consisted of five children, a sixth having died two years before. On the date named the wife, with three children, left her husband’s residence and the village where he resided, from a railroad station not used by him, and in his absence from home, and, he says, without his consent or knowledge. Since that date the husband and wife have not seen each other. She has been living in New York with the three children, supported by her family.
The wife says that she was justified in leaving her husband and in remaining away from him. Her story is this: Shortly
Her story of the immediate cause of her departure from his home is this: Complainant came home one night with a fish ■which he wished her to pickle. She explained her inability to
The complainant denies defendant’s story in all of the above-details. He says he never treated her with indifference or called her vile names; that he always gave her plenty of money and supplied her with sufficient clothing; that he never neglected-her, but was always affectionate to her and the children, whom he dearly loved, and he expressly' denies the statement of the-fish episode. He declares he never told her to leave his house. On the contrary, he testifies that he did not know that she was going and was amazed to find she had gone. As to money matters, he says his wife’s money was invested at her request, in stocks, and was lost.
- After- defendant left complainant’s house, in May, 1895, the parties had no personal interview before the bringing of this suit. Evidence of complainant’s purpose and state of mind is-disclosed only by letters written by him to his wife, whereby he says he endeavored to persuade her to return to him.
The circumstances narrated did not justify the wife in abandoning her husband’s house. If it were true that, in the heat of the quarrel about the failure to prepare the fish, he told her to leave his house, and that if she did not he would put her out, it is equally true that she remained for two weeks thereafter, with no further step, by either word-or action on his part,, toward carrying out his threat. At the time of her departure-she was under neither fear nor compulsion. Her husband was not present. The weight of the evidence goes to show that he did not know she intended to leave. Her selection of a route-of travel on which she would probably not meet him, indicates-
While the evidence does not show that the act of the wife in 'leaving her home was compelled, the attitude of the husband,
In none of these letters does the husband indicate any regret at the wife’s departure or any desire that she should return tollina.' On the contrary, the trend of them all is towards some-arrangement for a divorce upon terms to be dictated by him or the obtaining of her signature to his deeds disposing of his-lands.
'A summary of these letters of the husband to the wife will-show his position as to her absence by proof of his own making. His first letter to his wife after her departure from his house-simply sought to ascertain whether Mrs. Sarfaty would sign-a deed for a certain property. It contained no other suggestion of any kind. Several other letters, pertinent to the same matter, contain no suggestion of a change in their marital relations nor of any desire or willingness to have her return tollina. In a letter of July 5th, 1895, he says: “ I will not attempt to make any more deals that require your signature-until I am in a position to dispense with it.” In a letter dated July 8th, 1895, he says that if Mrs. Sarfaty had been where she-ought it would not have happened, referring to his failure to-put the deal through. In a letter of the 10th of July, 1895, he-tells her she is even a bigger fool than he thought her—
“I have made a fool of myself, waiting so long, but I could not bring myself to disgrace my children. I do not suppose I can get á divorce before-September, but I will see my lawyer and see what can be done. I shall apply for the custody of the three younger children, as I would not have them' brought up by such an unnatural mother.”
He writes that his lawyer says he has a plain case and there-will be no trouble, and as she seems so remarkably anxious for
“If fight there must be I have everything ready to commence my suit against you and also a suit for damage against some one else, and before I get through I will have my rights. I wish your answer at once,” &c.”
In a letter dated August 7th, 1895, to the brother-in-law of the defendant, his evident purpose is to recover the children, but there is nothing to show a willingness or desire to have his wife return to him. He says: “In a fight I can get a divorce and the custody of my children. Any fight with me will of necessity go on until I win or have nothing left to fight with.” He offered his wife every cent he had in the world except a house, on certain conditions : “My children shall not be brought up to hate me. I have no one in the world to love. There is no doubt the court would give them to me.” He says:
“ My wife knows where I live, and I will give respectful attention to any. thing she may write. I have everything ready for a suit for divorce and the custody of my children and also a damage suit. For reasons stated above I do not want to fight. My wife has been away so long the people are beginning to talk, arid the first breath of scandal would start me.”
It is, he writes, for his wife to say, and say quickly, what it shall be. He says his wife holds an awful power over him, which is the children, and for the love of them he has hesitated. Again he writes the brother-in-law, on August 13th, 1895, that if his wife and himself do not reach a complete understanding that week he would commence suit for divorce on August 19th. Any communication must come from his wife direct, and after that nothing she might say would have any effect.. He closes his letter with a veiled threat of some scandalous matter affect
“ If you will send me the three younger children I will make any settlement regarding money matters in my power. As you do not wish to live with me you can have a home elsewhere. This is now your last chance for an amicable settlement. If you now refuse to accept my proposition my suit against your family and yourself shall be pushed to the bitter end.”
On the 11th of May, 1897, he wrote that divorce proceedings had commenced, and asked her if she had any proposition to make. This statement that divorce proceedings had commenced was false in fact, and probably to the knowledge of the complainant, for he did not swear to the bill until May 20th, 1897, nine days after he wrote this letter, and the bill was filed on the same day. She replied, on May 13th, 1897, that her proposition was’that if he wished to reach any adjustment he should meet her at once at some place in New York, not objectionable to either. In answer to her letter he says, in his letter of May 14th, 1895 : “I have no propositions to make, but I will hear any proposition you make and try and treat it clearly and fairly.” Sbe would have to meet him on Monday; that he would not come to New York, as it was her place to come to him, and if she came she must come alone.
These letters of the husband show a continuously vindictive spirit and an entire willingness, not only that his wife should live separately but an actual anxiety for a divorce. No one of
Under these circumstances it is clear that the husband made •no honest endeavor to have his wife return to him. His letters were written in a spirit indicating a purpose to keep her away. ■One of his letters shows that he contemplated a divorce with •equanimity if only he could have three of the children, and in ¿another he actually made a direct proposition that she permit •him to get a divorce and make no defence.
It was after receiving such letters as these, covering nearly Alie whole period of her separation from her husband, that he wrote to her, falsely stating that he had begun proceedings for •divorce, and asked her if she had any proposition to make. He Alms drew from her. an indication of what her disposition was in view of an actual suit against her for divorce. She answered, writing him to come and see her in New York if he wished to adjust their matters. This letter was received by the husband before he had in fact begun this suit, and made known to him ■that his wife was willing to confer with him for an adjustment. He was probably now acting under legal advice and knew that -the tw.o years of her absence had expired, and that any show of willingness on her part to return to him would spoil the obstinacy of her desertion. He then wrote her in reply, refusing tc ■come and see her, telling her it was her place to come to him, and that if she came she must come alone. As might have been expected, she did not come alone from New York to Philadelphia to see him, and about a week after the husband’s last letter he filed his bill in this cause.
These being the relations of the parties according to the proofs,
In the case of Bowlby v. Bowlby, 10 C. E. Gr. 406, this court declared that though a desertion by a wife may have been willful in the first instance, it could not be obstinate unless it was persisted in against effort or influence on her husband’s part to-bring the desertion to an end. Cornish v. Cornish, 8 C. E. Gr. 208, was cited as supporting that view. The case was taken to the court of appeals (10 C. E. Gr. 570), and was there affirmed on the opinion of this court. In Herold v. Herold, 2 Dick. Ch. Rep. 210, the principle was again applied, and it declared that when the husband was not entirely blameless for the act of the-wife, and he makes no effort to prevent her desertion of him and acquiesces in and appears satisfied with its continuance, he is not entitled to a divorce. In Costill v. Costill, 2 Dick. Ch. Rep. 349, it was again declared that if a husband does nothing to induce his wife to return to him, even when she separates from him without sufficient cause, her desertion will not be deemed to be-obstinate.
Through all these cases the principle is recognized that the separation of the parties, in order to constitute desertion,’ must be against the will of the party complaining. It is quite obvious' that if there is an acquiescence or approval of the separation by the party who complains, it does not lie with him to make the-matter done with his consent, the basis for the dissolution of the-marriage contract.
In this case the complainant’s own treatment of his wife, though' not sufficiently harsh to justify the separation, was undoubtedly a provoking cause thereto. His conduct after the wife left indicated no desire on his part that she should return, nor even a-willingness to receive her. His letters to her, considerable in number, and running over nearly all of the two years during which he claims she continuously and obstinately deserted him,, shows toward her, not that treatment which a just man should extend to his wife, who had impatiently and unadvisedly separated from him, but a willingness on his part that she should stay away, and one letter proposes a collusive divorce.
Incidental to his application for divorce, the complainant has filed a petition iii this cause asking possession of the children •of the marriage, who are with their mother in New York. The consideration of this petition is dependent upon the application for divorce now under consideration. That failing, the petition for custody of the children must also fail .and be disposed of as an original and independent matter.
Upon the whole case the complainant has not proven that the wife’s separation was a willful, continued and obstinate desertion. There should be a decree that complainant’s bill be ■dismissed, with costs.