41 N.J. Eq. 202 | New York Court of Chancery | 1886
The complainant seeks a decree against her husband for alimony. Her bill is filed under the twentieth section of the statute concerning divorces. To be entitled to prevail in her suit, she must show that her husband, without justifiable cause, has abandoned her, or separated himself from her, and refused to maintain and provide for her. Both facts must be proved — both abandonment or separation, and a refusal to support. Anshutz v. Anshutz, 1 C. E. Gr. 162. It is not disputed that the defendant has refused to support the complainant. The contested question of the case is whether or not the defendant has abandoned or separated himself from his wife under such circumstances as give her a right to a decree against him.
The parties were married in 1861. They are Germans. Their married life seems to have been happy and harmonious up until the summer of 1876. In March, 1875, a female servant was brought into the family. In the summer of 1876 the wife, on her return home from the city of New York, at a time when she was not expected, discovered her husband and this, servant alone in the house under circumstances which led her to suspect
The girl was delivered of a bastard child on the 12th of February, 1878. The paternity of the child is not disputed. The husband admits that it was his. He also admits that he took the girl on a pleasure trip while she was pregnant, and that he supported her from the time she was discharged until after the birth of her child. He further admits that he was present at the birth of the child or shortly afterwards. The wife swears that her husband, on his return from the bedside of his paramour.
The complainant went to Europe in May, 1880, with her two daughters, with the defendant’s consent. Before leaving, she engaged a person to take charge of her house in her absence. In consequence of her sickness, her stay in Europe was prolonged beyond the time she intended to stay when she started, and the housekeeper she had engaged was compelled to leave the defendant’s house before the complainant returned. The housekeeper remained about three months. She did not leave by the procurement of the defendant, but because her presence was necessary in her own household. Shortly after the housekeeper left, the defendant brought Anne to his house, and installed her as his housekeeper. He says he did so by the direction of his wife. His story is that his wife wrote him from Heidelberg, stating that she had heard that his housekeeper had left, and asking why he did not go and get Anne; also saying that Anne had been there before, and was a good woman to take
The health of the complainant, from the time of the birth of her last child, in the fall of 1876, had been seriously impaired. She was sick and weak when she returned from Europe in September, 1881, and was soon thereafter advised by her physician that her health required her to return and take up her residence near the Black Forest. Her husband consented that she might go, and she and her two daughters sailed again for Europe on the 25th of February, 1882. On this occasion she remained away for over three years. She reached Hoboken, on her return, on the 27th of May, 1885. The defendant, immediately after his wife left, installed Anne in his house, and has kept her there constantly since, except for a few months. He says he did so at the request of his wife, or with her approval. His wife denies this, and for the reasons already given, I think his story must be rejected as untrue. The girl was still in his house when his wife returned, and also when this suit was brought. She left a few weeks after the institution of the suit, but returned again in February, 1886, and was still there when this case was tried. The complainant was informed by one of her sons, while she was in Europe, that the girl was in the defendant’s house. Immedi.ately after her return, she sent a messenger to ascertain whether she was still there, and found that she was. She was shortly afterwards informed by the defendant’s mother that the girl was still there, and that she occupied the'room which the complainant formerly occupied, and slept in her bed. The defendant denies that he has had sexual intercourse with the girl since the birth of her child, and he also denies all, or nearly all, of the acts of ■cruelty charged against him. But his denials possess very little value as evidence. The proof of his cruelty is clear and decisive. It comes, in part, from the lips of his own children. The true state of his relations with the girl is apparent. He has put his wife out of his heart, and taken this girl in. His cruelty to his wife renders it clear that the love he once bore her is turned to Fate; he now loathes her presence, while his conduct shows that
This conclusion raises the question, Did the fact that the defendant was living in adultery with this girl, in his own house, when his wife returned, constitute such an abandonment of his wife, or separation from her, as entitled her, if he refused to provide for her, to the remedy given by the statute ? A husband who refuses to love and cherish his wife, and excludes her from his heart, and gives his love to another woman, and desecrates his wife’s home by living there in adultery with such other woman, so completely deprives his wife of every substantial conjugal right, and so wantonly dishonors her, as to break every bond and sever every tie that ever existed between them. They are still husband and wife, but so wide apart that their separation is more effectual and unalterable than it would be if he had driven his wife from his door with blows and stripes. There may be an abandonment, within the meaning of the statute, while the parties continue under the same roof; as where the husband refuses to have any intercourse with his wife, and excludes her from that part of the house which he occupies. Anshutz v. Anshutz, 1 C. E. Gr. 162. And so, a husband is guilty of abandonment when he compels his wife, by cruel and abusive treatment, to leave him. Starkey v. Starkey, 6 C. E. Gr. 135. If, in consequence of his conduct she is compelled to leave his house, either to preserve her honor and self-respect, or to
The object of the statute, under which this suit was brought, is to make the right of the wife to support more secure than it was at common law, by giving her a remedy, whenever her husband fails to perform his legal duty, directly against him, instead of leaving her right in that respect to be wrought out, as it has to be at common law, through a third person. And, in my judgment, the statute should be construed to give a wife a right of action against her husband, whenever she separates from him under such circumstances as will enable a third person to maintain an action against him for necessaries furnished to her. The
The question which remains for decision is, What allowance should the complainant have? The defendant is worth at least $50,000. I think he is worth more. Both he and his brother made a very determined but clumsy effort to misrepresent his pecuniary condition, and it is not at all certain that the sum just named even fairly approximates the actual value of his property. He and his brother are engaged in business as florists, at Secaucus, in the county of Hudson. Their business has been very prosperous, and is yet. Their net annual income exceeds $10,000; it is probably over $12,000. The parties have four children, two sons and two daughters. The daughters are with their mother, The eldest son, now over twenty-one years of age, resides with his uncle, and assists him in conducting that part of the floral business which the uncle manages. The other son lives with his father. He is seventeen. The daughters should remain with their mother. Their father is unfit to be their custodian. The allowance should therefore be sufficient for the proper support of both the mother and the daughters. In such a case support should not be measured out with a stinting hand. The court can give nothing by way of punishment, but, in a case like this, where the conduct of the wife has been blameless, and that of the husband has been almost atrociously cruel, and grossly indecent, and his means are ample, it ought, in awarding alimony, to exercise a just liberality: $2,200 a year, payable quarterly, will be allowed, together with an additional counsel fee of $150. The defendant must pay the complainant’s costs.