Opinion
12-27-1904
BRAND v. BRAND.
Werts & Runyon, for petitioner. Pierre F. Cook, for defendant.
Petition for divorce by Glenwood L. Brand against Mary Brand. Divorce denied.
Werts & Runyon, for petitioner.
Pierre F. Cook, for defendant.
STEVENSON, V. C. (orally). My conclusion in this case is that the petitioner has not proved the matrimonial offense of desertion, under our statute, so as to entitle him to an absolute divorce from his wife.
The parties were married in the state of New York, where they were domiciled. They were then residing in the city of Buffalo, which is over 400 miles from Jersey City, where the husband afterwards established a residence. They lived in Buffalo as man and wife from their marriage in the summer (I think it was) of 1897 until the early fall of that same year, when the young couple (for they were young people) went to Cuba, a village in the state of New York about 65 miles from Buffalo. The petitioner, the husband, obtained employment in Cuba at the hotel of his uncle, a Mr. Chamberlain. He acted as clerk, and perhaps in some other capacities, in the hotel. He took his wife to his grandmother's house, in Cuba, where they lived together while they resided in Cuba. The young wife evidently was not satisfied with the circumstances in which she was placed in Cuba, and in the latter part of December, 1897, only a few months after their marriage, she went back to Buffalo, ostensibly to make a short visit. A few weeks later she wrote to her husband, according to his statement and the statement of his uncle, Mr. Chamberlain, that she was tired of married life, and did not mean to return.
It is noticeable, and it is a very important fact to be taken into consideration in dealing with the really vital question in this case, that the young couple do not appear to have ever quarreled. It does not appear that they were incompatible. There is nothing to show in this case that their life together would not have been harmonious and happy if the wife had been satisfied to live in Cuba. She was very young—only 19 years of age. For all that appears, she had lived her whole life in Buffalo, a large city. She was, to a certain extent, stranded in this village of Cuba. She was left apparently all day long in the society of the petitioner's grandmother, an old woman. It is not strange that she should have been homesick; that she should have been dissatisfied with her surroundings; that when she got back to Buffalo, among her friends, she should have wished to remain with them, and even made up her mind that she did not want to have any further experience with married life. Three letters, I think, are proved to have been written by the wife to the husband very shortly after her return to Buffalo in the winter of 1898. The husband says that his letters to his wife entreated her to return. After that brief correspondence, all communication between the couple ceased until the summer of 1898. The couple were married in 1897. They moved to Cuba in 1897, and the separation occurred in December, 1897, and the correspondence occurred in January and February, perhaps, of 1898; and then, in the summer of 1898, after a period of silence and nonintercourse and noncommunication, the young wife, being about to become a mother —presumably acting upon the advice of those who were around her—caused the husband to be arrested and brought from Cuba to Buffalo, where he was arraigned before a magistrate upon proceedings for nonsupport of his wife at that time. The testimony, which is not disputed, of the husband and of his uncle, Mr. Chamberlain, is that the magistrate, upon perusing these letters, dismissed the proceedings; that before he did so he asked the husband if he was willing to take his wife home to Cuba, and he declared that he was; and that the wife declared at that time positively that she would not return to her husband. So this matter ended, and the petitioner, the husband, went back to Cuba. A little later he received a letter from his wife stating that she would return to him, and thereupon he and his uncle fitted up a cottage where the young couple could live together entirely separate from his other relatives. A letter then came from the wife, stating that she had changed her mind, and would not return. Thereupon, with the knowledge, if not at the instance, of the husband, who was very much depressed by this separation, his uncle and aunt, Mr. and Mrs. Chamberlain, went to Buffalo to endeavor to induce the young wife to come back to her husband. By this time she must have borne the child which figures in this case, or she certainly must have been just on the eve of giving birth to the child, as I recall the dates. It is not a matter of very great importance. Mrs. Chamberlain had an interview with the defendant, in which she stated that the petitioner wanted the defendant to come back, and that a separate house had been fitted up for her. The defendant, however, absolutely refused to return. This conversation is testified to, not by Mrs. Chamberlain, but by Mr. Chamberlain, who was outside the door. The defendant, while she testifies that the door was shut, does not testify that this conversation did not occur. She does not deny that she made this statement to Mrs. Chamberlain. She does not deny that Mrs. Chamberlain made these propositions to her, and I may say here that she does not deny that the husband and his uncle state with substantial accuracy the contents of the letters which they testified to. This was the last effort made to bring these young people together, as I recall the testimony.
From the summer or early fall of 1898 down to the present time this couple have lived in a state of separation, and I think the testimony shows that no effort has been made on the part of either of them to terminate this separation. The testimony satisfiesme that the wife deserted the husband without legal justification, and that she remained away from him without justification; that he endeavored in good faith to bring her back to her duty, and to induce her to come back to live in the home which he had provided for her in Cuba, and that she obstinately refused to comply with his request; and her refusal appears all the more unjustifiable, because, after the separation had occurred, in the summer of 1898, the husband, recognizing that the wife had found her life in Cuba unhappy, had, with the aid of Mr. Chamberlain, his uncle, done everything that could be reasonably expected to provide a home for her, a home with which she would be satisfied. But she preferred to remain in Buffalo, in the large city, among the friends with whom she had been associated, and from whom, of course, she was separated when she went to Cuba. This conduct of the wife was unjustifiable. I think it appears that she stood in the position of a wife who has willfully and obstinately remained in a state of desertion from her husband, and, if this state of affairs had continued for two years, and the parties had been resident in New Jersey at the time during the whole period, I think that this husband would be entitled to a divorce, under our law. I think it is very doubtful whether the husband could be charged with any unfairness or injustice after the wife had positively refused in the summer of 1898 to come back to Cuba, if he made no more approaches and made no more offers. There is strong ground for maintaining that he would have a right to stand in silence and wait for some expression of repentance on the part of his wife. But I do not decide this point. It is not necessary that I should do so, and there may be a serious question about it, growing out of the fact that the child was born in August, 1898. It is not a matter of very great importance. My recollection is that the defendant herself gave the date of the birth of the child as August 8th or 9th—along somewhere in the first part of August. The point that I am suggesting is that the circumstances in which this young couple found themselves after the birth of this child were very different from those which had existed theretofore. The defendant was an infant She was only nineteen years of age. She now, while away from her husband, has borne a child—a little boy—and it certainly would have been very strange, if the petitioner had remained in Cuba, if he had never made any approach to his wife or child for the year and a quarter, at least which would have to elapse before there would be two years of willful, continued, and obstinate desertion. Even assuming—I am now assuming—that the transaction occurred in New Jersey, and measuring the conduct of the parties according to our law, assuming the young wife to have acted rashly, violated her duty, and deserted her husband without justifiable cause, the birth of a child makes, or ought to make, a great deal of difference; and the fact that the husband could remain away from the wife and child, and make no further effort to terminate the separation after the birth of the child, perhaps affords strong ground for claiming that the husband acquiesced in the desertion. But I do not decide that point, because we are not dealing with the situation of these parties as it was before the husband came to New Jersey.
This man cannot get a divorce from his wife on account of any desertion that occurred in the state of New York, no matter how long that desertion may have continued. This court may almost be said to take judicial cognizance of the fact that in the state of New York an absolute divorce cannot be obtained on the ground of desertion. The matrimonial offense, if any, which the young wife committed over in New York, was very different in its legal relations and results from a similar desertion committed in New Jersey. If the petitioner can obtain a divorce in this case, he must obtain it because he shows that the wife was guilty of willful, continued, and obstinate desertion of him for the term of two years in the state of New Jersey; that is, at some time after February, 1899, when he (the husband) moved into New Jersey. Now, this is a very important matter, and it is a matter that in divorce suits is often lost sight of. The facts and circumstances under which the couple have separated in the state of New York, and under which they have remained in the state of New York in a condition of separation, and the state of their minds in causing or submitting to such separation are pertinent only so far as they throw light upon the character of the separation which has occurred while they, or one of them, has been domiciled in New Jersey. What we are inquiring about in this case is not whether this young wife remained in a state of willful, continued, and obstinate desertion of her husband from December 31, 1897, until December 31, 1899. That is not the subject of our investigation. During the most of that period both of these parties were domiciled in the state of New York. Now, then, the exact problem is, does it appear in this case that after February, 1899, the wife was guilty of willful, continued, and obstinate desertion of her husband for the term of two years, while he was living in the state of New Jersey? Before this child—this little baby that ought to have brought this couple together—was more than six or seven months old, the husband left Cuba, and came to Jersey City, and took up his residence with his father. He came over 400 miles to what might be called a foreign state. He had no reason to suppose that his wife would not live with him if he went to some other place besides Cuba.He had every reason to believe that the sole cause of the separation was the aversion of the wife to living in this little country town where the conditions of life, of course, were radically different from those to which she was accustomed. They had never quarreled, as I said; there is no proof of incompatibility; and now a child has been born. Had he any reason while he lived here in Jersey City for two years after 1899 to suppose that his wife would not come to him and make her home with him if he gave her a chance? He gave her no chance. He wrote her no letters; sent her no message; did not take pains to let her know where he was. He simply recognized that he and his wife were separated absolutely, and came here to a foreign state—to a city 400 miles away from his wife—and left her to shift for herself, left her to take care of herself and take care of his child.
Now, it appears in the proof that from February, 1899, until March, 1901, the wife, if she had come to him, would have bad a very slender chance to obtain proper support. The evidence shows that the husband earned very little. The evidence does not show that the husband was able to take care of the wife. It appears that for a while the husband went into some doubtful enterprise in connection with a sporting paper, in which all his compensation, he says, was dependent upon profits, and there were no profits. He seems to have been supported at his father's house. A little later on he went into the employ of Ingersoll & Co., and my recollection is he testified he received $3 or $4 a week. Well, that is a very slender foundation for a home for this man's wife and his child. But in March, 1901, he obtained employment as a Pullman conductor at the wages of $65 a month. A little later he was transferred to an inferior grade or class of conductors, where his wages have averaged $40 a month. But there is no pretense in this case that at that time he was not abundantly able to support his wife and child, but he did not communicate with his wife or child in any way. He seems to have been singularly free from that feeling of natural affection which ordinarily would have prompted a man in his situation at least to see his child. He gave his wife no notice whatever of his improved circumstances. For all that appears, he never told his wife anything about what be was doing in Jersey City. She did not come to him. He did not ask her to come to him.
It is hardly necessary to pursue the story much farther. There is some difficulty in reconciling the statements of the parties in regard to the dates of the subsequent interviews. I do not understand, though, that the husband ever saw the wife, or had any communication with her, from the time he went to Jersey City, in February, 1899, until March, 1903. The divorce suit was brought September 28, 1903. The process was not served until November, 1903. Now, the history of what took place between these parties from the spring of 1903 until the notice in the divorce suit was served on the wife, in November, is quite confused. I don't think these parties are untruthful. I think this case is remarkable in that. The two parties are, in my judgment, truthful persons. There is very little exaggeration—very little misstatement. There is hardly any contradiction. I think the sole matter of consequence in which there is a discrepancy between the testimony of the husband and the wife was in regard to what was in one of the letters, besides the mileage book, which the husband sent to the wife. He says there was a $10 bill in it. She says there was 10 cents in it. Well, that discrepancy may be accounted for. I don't think there is any just reason in this case to charge either of these young people—for they are still young—with any false statement. They tell the truth, and the story of their unhappy separation is a very clear and distinct one, until we come down to the summer of 1903; and then there is some difficulty, growing out of the inability of the parties to give the dates correctly.
Now, without going into detail, it is plain that the wife was seeking to have an understanding with the husband. The first letter that is produced here—and I think some other letters might have been produced here that would throw light on this case—but the first letter produced is dated June 26th. The husband is writing to the wife, and he expresses surprise that she should, of all persons in the world, want to see him. The indications are that she was trying to make him support her or the child. The indications are quite distinct that neither of them cared very much to live together. I think it might be fairly inferred that there was an acquiescence on the part of each in the separation which had taken place, and which was continuing. The position of the wife, perhaps, was that either he ought to provide a home for her and the child, or else they had better prosecute a divorce suit; and who was to be the complainant in the divorce suit, and where it was to be brought, was perhaps unsettled.
It is a curious fact that, before the last interview between them, the divorce suit had been commenced, but the husband did not tell the wife that it had been commenced. She had not yet received notice, and the parties separated with the arrangement or understanding that an arrangement would be made later, which possibly might include their living together. The husband did not seek a further interview with the wife before the divorce suit was commenced, if it had not already been commenced—at any rate, before the notice was served upon the wife. Taking all the testimony in regard to the relations of these people in 1903, before the divorce suit was actually commenced,I think the fair inference is that there was no desire on the part of either that they should live together. There was a desire on the part of the wife that the husband should support the child, and there are indications that the wife was willing to come back to the husband if he was willing to take her. Under all the circumstances, I think it appears that at no time while the husband has been resident in New Jersey since February, 1899, until the commencement of the suit, on February 28, 1903, or, at any rate, for no two years of that period, has this young wife been guilty of willful, continued, and obstinate desertion. That she was wrong in leaving her husband in New York is perfectly plain, but when he moved to New Jersey—came here, 400 miles—his conduct has not been fair, in my judgment. He has not afforded the wife the opportunity which a just man ought to have afforded her, under the circumstances, to return to her duty. If he was not able to invite her back home, or offer her a home, from February, 1899, until March, 1901, which I think is highly probable, so that he was not to blame for not inviting her during that period, when he got this employment—regular and fairly lucrative employment—in March, 1901, the situation was entirely changed, and the duty of giving his wife an opportunity to come to him with their child was imposed upon him, and that duty he violated.
I think, therefore, he is not entitled to a divorce.