12 N.J. Misc. 761 | New York Court of Chancery | 1934
The petitioner in this divorce suit íiled a bill for maintenance in 1932, alleging extremely cruel treatment on the part of defendant, and that “defendant remained with complainant under the same roof until the 24th day of November, 1932, at which time he completely severed all his relations with complainant and left and abandoned her, without her 2>ermission or consent, and separated himself from her.”
On December 13th, 1933, petitioner filed a petition for divorce from defendant, in which petition she sets up this decree of dismissal; and also the petition charges defendant with extreme cruelty, the acts alleged and the language charging their commission being the same as in the bill for maintenance; and petitioner prays a decree of divorce on the ground of this extreme cruelty. Defendant filed his answer admitting the entry of the decree of dismissal and denying the allegations of extreme cruelty; and his answer avers that subsequently to November 24th, 1932, he requested petitioner to return to him and resume marital relations with him and that she has refused.
Counsel for petitioner now moves to strike out this answer, on the following grounds:
1. The answer of the defendant discloses no defense to the petition for divorce.
2. There are no facts in the defendant’s answer which show, or tend to show, that the alleged acts of extreme cruelty complained of were in any way condoned by a resumption of cohabitation, or in any way whatsoever.
3. The defendant has not pleaded in his answer anything by way of confession and avoidance to preclude and bar the petitioner’s right to recovery.
4. The defendant is estopped from contesting and disputing the facts constituting the abandonment as alleged in the bill of complaint, which is made the basis for this divorce
At the outset it should be said that petitioner in her maintenance suit did not allege that defendant’s extreme cruelty compelled her to leave him, and thus there had been a constructive desertion. She claimed that defendant, although remaining in the homo, left her without her consent. The main issue, following the trial of which the decree was entered, was one of unjustifiable abandonment and neglect or refusal to support. However, in disposing of this motion I shall assume, as counsel for petitioner does, but as I think, improperly, that the recital in the decree of dismissal is equivalent to a finding of extreme cruelty.
Counsel for petitioner submits that his motion is “in the nature of a demurrer;” and, in substance, it is a demurrer, as I see it: but a demurrer to an answer in equity is not recognized. The court of errors and appeals affirmed Vice-Chancellor Stevenson’s opinion in toto in Commonwealth Title Co. v. New Jersey Lime Co., 86 N. J. Eq. 450; 100 Atl. Rep. 52, in which he held that a motion to strike out an answer is equivalent to exceptions; that the motion stands before the court precisely as if, under the old practice, complainant had filed exceptions; and in disposing of the application to strike out the answer the vice-chancellor was moved to say: “Demurrers in equity should be discouraged as tending to unnecessary delay and as presenting often to the judgment of the court purely academic questions, the discussion and determination of which frequently embarrass rather than aid the administration of justice, the application of law to the facts of the case when those facts are actually proved at the final hearing. Among the proposed amendments to our chancery practice is one abolishing demurrers. In my opinion, demurrers to bills should never be allowed excepting by leave of the court. The motion to strike out an answer, or a portion of an answer, which is a])
The rules of this court have been changed since Haberman v. Kaufer, supra, was decided; but there is nothing in the rules which permits a demurrer to an answer, or a motion to strike out an answer, except so far as rule 67 is to be
Exceptions to an answer are of two kinds: (1) For insufficiency: (2) for scandal and impertinence. The former lies where the answer does not sufficiently respond to the allegations and charges in the bill, and the latter where the answer contains scandalous or impertinent matter. Exceptions for insufficiency can only be sustained where some material allegation, charge or interrogatory in the bill is not .fully answered. Fletch. Eq. Pl. & Pr. 355. Impertinence consists of an allegation that is irrelevant to the material issues made or tendered. Ibid. 156. Any matter in an answer which is fairly responsive to the bill is not impertinent. The test of impertinence is to inquire whether the subject of tlie allegations could be put in issue. Ibid. 344.
Defendant denies the alleged extreme cruelty, and in denying the alleged cruelty defendant is impliedly asserting that the decree of dismissal does not preclude him from calling on petitioner to prove her allegations of extreme cruelty. This is what defendant has put in issue, and this is not impertinent. This is the thing that is challenged by this motion to strike out. As the grounds for the motion to strike out do not allege insufficiency or impertinence, the
If there were no adjudications in this court, or in the court of errors and appeals, other than those I have referred to, on the subject thus far discussed, it would be clear that the motion to strike out the answer in the present case should be denied; but there is an opinion by the late chancellor (Weidman Silk Dyeing Co. v. East Jersey Water Co., 88 N. J. Eq. 397; 108 Atl. Rep. 858, 1056) in which he held that while a motion to strike out an answer on the ground that it discloses no defense would not have lain prior to the promulgation of the present chancery rule 67, which reads as follows: “Demurrers, pleas and exceptions to answers are abolished. Any pleading may be objected to on motion on the ground it discloses no cause of action, defense or counter-claim respectively,” that this rule is, in its language, “a clear departure from that of the former rule 213; and that an answer may be objected to on motion on the ground that it discloses no defense;” and he added, “of course, if the answer be struck out in its entirety the complainant would be entitled to a decree, either as on confession or on proofs taken ex parte, unless leave were given to answer over.” This decision was affirmed by the court of errors and appeals (Weidmann Silk Dyeing Co. v. East Jersey Water Co., 89 N. J. Eq. 541; 105 Atl. Rep. 194), but it is to be noticed that in its short affirmance that court did not at all discuss rule 67. This is part of the affirmance: “The opinion of the chancellor sufficiently vindicates the result he reached * * *. We agree that the facts conceded in the bill and answer entitle the complainant to a decree.” As I understand, this affirmance shows that the court of errors and appeals approved a
There are two reasons, as I view the matter, which together warrant me in holding, on principle and on authority, that the present motion to dismiss should be denied, despite this decision of the late chancellor and its affirmance by the court of errors and appeals. As to the first reason, which has application to an ordinary suit in this court as well, I but suggest that rule 67, on the language of which, as “a departure from that of the old rale,” the late chancellor based his decision, was in force at the time the court of errors and appeals affirmed Vice-Chancellor Stevenson’s decision in 1916 (Commonwealth Title Co. v. New Jersey Lime Co., supra); and while rule 67 is not specifically mentioned in the opinion of the vice-chancellor it should be held to be within the purview of his decision. If this suggestion is well made it follows that, if the court of errors and appeals, in its affirmance of the late chancellor (Weidmann Silk Dyeing Co. v. East Jersey Water Co., 89 N. J. Eq. 541; 105 Atl. Rep. 194) did not necessarily approve the striking out of an answer on the ground that it showed no defense, then either the point may now be ruled on by this court, or it is controlled by the decision of the court of errors and appeals (Commonwealth Title and Trust Co. v. New Jersey Lime Co., supra) in affirming Vice-Chancellor Stevenson. I may add that it seems clear that the old practice, as laid down in Commonwealth Title Co. v. New Jersey Lime Co., supra; Leslie v. Leslie, supra; Doane and Jones Lumber
Next, I think that rule 67 does not relate to answers in divorce suits, because of the peculiar nature of such suits. Consider the result of an answer in a divorce suit being struck out on the ground that it showed no defense. Apply the language of the late chancellor in the case hereinbefore discussed (Weidmann Silk Dyeing Co. v. East Jersey Water Co., 88 N. J. Eq. 397; 102 Atl. Rep. 868, 1056), to wit, “of course, if the answer be struck out in its entirety the complainant would be entitled to a decree, either as on confession or on proofs taken ex parte, unless leave were given to answer over.” But there can be no decree “as on confession” in a divorce suit. Here we think of Mr. Bishop’s so-often-repeated language that a divorce suit is “a triangular suit, sui generis.” In divorce suits the state is a party whose interest the court at all times will save and protect. And as the lawr favors marriage and disfavors divorce, the court will do nothing to facilitate the latter, but will onty dissolve the marriage relation when the complaining party is strictly entitled to a decree. A judgment by default'is not favored in a divorce suit. Grant v. Grant, 84 N. J. Eq. 81; 92 Atl. Rep. 791; Rinehart v. Rinehart, 91 N. J. Eq. 354; 110 Atl. Rep. 29. It is the policy of the law that all proper defenses be made or compelled. Feickert v. Feickert, 98 N. J. Eq. 444; 131 Atl. Rep. 576. The peculiar characteristics of divorce suits are written large in the decisions of our courts, as in the courts of virtually every American jurisdiction. An admission in an answer in a divorce suit may not prove a case. Otherwise there might be a decree based on a petition and the answer thereto, with no testimony taken. It is my opinion that, unlike in ordinary equity suits, the allegations of the petition are not necessarily to be taken as true on the
In my opinion an answer in a divorce suit should not be stilled by any procedure. This court should not, by its order on the pleadings, override or suppress the denials of an answer in a divorce suit. To strike out the answer in the present suit would be wrong in principle; and I find no compulsion in rule 67, for the reasons somewhat expressed herein. I am not ignoring the provision of section 9 of our Di vorce act that the same process and procedure shall be had and pursued in divorce suits as are usually had and pursued in other causes in the court of chancery, except so far as other process and procedure is prescribed by or under the authority of the act. But I should say that what is substantive law and what is adjective law in divorce suits is not so clear, because of the peculiar characteristics of divorcie suits. “Students of legal history know the truth of the statement that The substantive law is secreted in the interstices of procedure/ nor need practitioners be reminded how frequently changes in procedure affect the substantive rights of parties.” (Professor Morris B. Cohen, Law and the Social Order, published 1933—at p. 128).
There are other reasons why the motion should be denied; and they should he mentioned, because counsel for petitioner is not to regard his motion as dismissed only on the grounds hereinbefore stated. He is not to be left with the thought that he may have the right to renew his motion on final hearing on his offering the decree of dismissal in evidence.
Counsel for petitioner is in error in attributing to the recital in this decree of dismissal the force of an adjudication of extreme cruelty as in a decree of divorce in a suit for divorce. A matter is not res judicata unless there he identity of the thing sued for, of the cause of action, of the persons and
In the present suit there is not identity of the thing sued for, nor of the cause of action, nor of the judgment, nor of the evidence. The relief asked for in the present divorce suit is not the same relief as was asked for in the maintenance suit. The present suit is brought to dissolve a marriage. The maintenance suit was brought to enforce the legal obligations of that marriage and to obtain a money decree. Even if, however, the decree of dismissal is to be viewed as one which establishes the fact that the extreme cruelty alleged
The opinion of Vice-Chancellor Learning, in Taylor v. Taylor, which was affirmed by the court of errors and appeals in toto (73 N. J. Eq. 745; 70 Atl. Rep. 323), impliedly, but plainly, held that where a wife separates herself from her husband and claims alimony, she must justify the separation by proof of the extreme cruelty alleged to the same extent as if she were suing for divorce on the ground of extreme cruelty. This holding is best shown by the vice-chancellor’s own words: “The testimony upon the part of the complainant, if accepted in its fullness, might justify an affirmative conclusion. If all that is claimed in her behalf be accepted, it is probable that her treatment at her home may have been of such nature as to justify her, in the preservation of her health, to take the radical step which she took in leaving her home; but that testimony and that claim, in practically all of its essential features, is without corroboration. The witnesses called to corroborate her in these matters have failed entirely to disclose any such condition of affiairs at her home as would entitle a court to make an affirmative finding to the effect of extreme cruelty, as claimed by complainant; and in view of the contrary and opposing testimony that exists in this case it is entirely manifest that no such finding can properly be made.”
Later, in Pinkinson v. Pinkinson, 92 N. J. Eq. 669; 113 Atl. Rep. 143, a maintenance suit, the court of errors and appeals held that “the court will consider in the disposition of the case the evidence of the parties as to the cessation of marital relations, although the evidence is uncor
It has been held that where a wife obtains a decree in a maintenance suit on the ground that the husband has unjustifiably abandoned her and has neglected or refused to support her, even if the decree rests on consent, she may use the decree in a suit subsequently brought by her for divorce on the ground of desertion after two years have run from the entry of the decree, as conclusive of the fact that the husband left her. However, before she may have a decree of divorce she must, in addition, present corroborated evidence of the continuance and obstinacy of the desertion for the two-year period.
As no corroboration is required in a maintenance suit where extreme cruelty is the issue, if a decree in a maintenance suit, like the decree under examination, is to be held an adjudication of extreme cruelty, it should be so held only to the extent and to the degree that proof of extreme cruelty is required in a maintenance suit.
Holding, as 1 do, that an answer in a divorce suit, which contains denials of the petitioner’s right to relief, may not be struck out on the ground that it discloses no defense: and that the rule adopted by the court of errors and appeals in Taylor v. Taylor, supra, has been changed by the decisions of the same court in Pinkinson v. Pinkinson, supra, and Shore v. Shore, supra; and that the rule declared by the court of errors and appeals in these last two named cases is that corroboration is not essential in maintenance suits; that this is a general rule; that it must be viewed as a general rule because of the reasons on which it rests, as stated by the court of errors and appeals in these two cases; and that this rule therefore includes within its scope an issue of extreme cruelty in a maintenance suit; it appears that the decree of dismissal pleaded in the present suit—leaving aside the fact that the reference to extreme cruelty in the decree is in the reciting part of the decree, the fact that the recital is of an affirmative fact which did not warrant the decree, which is a negative decree, and the fact that the decree rests on consent—was no! made on testimony which was necessarily corroborated, the motion to strike out the answer is denied.