Summary
In Bartow v. Bartow, N.J. Eq., 122 A. 888, the Court said that a petition for divorce on the ground of desertion filed after a delay of 25 years could not be maintained in the absence of satisfactory explanation for the delay.
Summary of this case from Gold v. GoldOpinion
No. 52/448.
12-10-1923
BARTOW v. BARTOW.
Hooker I. Coggeshall, of New York City, for petitioner. John M. Nolan, of Paterson, for defendant
Petition by Max Frederick Bartow against Catherine E. Bartow for a divorce. Decree for defendant.
Hooker I. Coggeshall, of New York City, for petitioner.
John M. Nolan, of Paterson, for defendant
LEWIS, V. C. The petitioner asks for an absolute divorce on the ground of desertion, and the answer is a denial of the desertion.
The evidence supporting the petitioner's action is flatly contradicted by that of the defendant and her witnesses. The petitioner depends mainly on the testimony of his sisters to sustain his claim that the cause of the controversy between himself and his wife was owing to a difference in religious belief. They testified that the brother and his wife had serious quarrels on this subject and that she abused and threatened him and finally refused to live with him, leaving him in 1866.
The defendant's explanation of the separation is that her husband moved with her from place to place and finally sent her to visit his mother, breaking up their home. She stayed with his mother for some time and wrote him asking what he was going to do, but the word he sent her was that she bad to make her own living and that she should go to New York. She alleges at this time the petitioner was living with another woman on Twenty-Fourth street, New York.
There is difficulty in establishing the exact date of the desertion. In affidavits filed in the alimony proceedings before this court it is stated, by the members of the family of petitioner, that the desertion occurred in 1894, while at the trial the date is fixed as 1896. Other amdavits in the alimony proceedings, before the petition was amended show that the alleged desertion occurred in 1894. It is evident that it is almost impossible for them to be accurate in this matter owing to the long lapse of time.
The defendant claims that the principal difficulties arose over her husband's attentions to other women, and we have it from a brother of petitioner, who was offered as a witness in his behalf, that this was one of the scources of controversy between them. The children of petitioner and defendant state that the fact that their father associated with other women and neglected their mother was a source of continual trouble. A woman, called "Nellie," is mentioned as being the especial subject of the attentions of petitioner. He denies any wrongdoing with other women.
A review of the evidence does not satisfy me that the lack of harmony in this family was due entirely to a difference in religious views, and there is Insufficient corroboration of the petitioner's story.
Aside from this, we have before us the fact that the desertion is alleged to have taken place in 1896, or about 27 years ago. It appears, therefore, that the petitioner waited for a period of 25 years to bring this matrimonial action. He offers no explanation for his delay. Our cases hold that, in such a situation, a delay for this long period is a bar to the action. Cummins v. Cummins, 15 N. J. Eq. 138; Barker v. Barker, 63 N. J. Eq. 593, 53 Atl. 4. Prior to the passage of the limitation statute in New York the rule wasthe same. Chancellor Kent, In Williamson v. Williamson, 1 Johns. Ch. (N. T.) 488, had before him a bill for divorce filed after a delay of 23 years, and he denied the application, holding that the lapse of time, or long acquiescence by the husband without disability on his part to sue, will be a bar to prosecution for divorce. The opinion In Williamson v. Williamson, supra, was afterwards made the basis of the statute of limitations in divorce causes in New York. Ackerman v. Ackerman, 200 N. Y. 72, 93 N. B. 192.
The rule against laches has been the subject of legislative enactment in many of the states. In some states five years operates as a bar. The English rule holds similarly that delay bars the suit. Short v. Short (1872) L. R. 3 Prob. & Div. 193.
Another weakness in the case presented by petitioner suggests itself in examining the testimony. It has been uniformly held by our cases that where a husband seeks a divorce on the ground now under consideration, he must show that be has made a proper and genuine effort to secure the return of his wife before he is entitled to relief. I do not find that Bartow did this. His sister, it is true, testifies that she spoke to his wife and that his wife told her she would not come back. This is not satisfactory. Bartow knew where his wife was. He has always been in a situation in life where he could have reached her without difficulty. He has never sought her out during the long period that has elapsed since they parted and made what is sometimes called a "robust" effort to procure her return. She says that she has always been willing to live with him and would return to him now if he would take her back. It is apparent that if the petitioner desires to secure relief, he must make a bona fide attempt to reunite with his wife.
A decree, in accordance with the views above expressed, may be entered.