Opinion
01-21-1914
LAKE v. LAKE.
Stackhouse & Kramer, of Camden, for petitioner. U. G. Styron, of Atlantic City, and Samuel W. Sparks, of Camden, for defendant.
Suit by Alice C. Lake against Charles W. Lake for divorce. Decree for plaintiff.
Stackhouse & Kramer, of Camden, for petitioner. U. G. Styron, of Atlantic City, and Samuel W. Sparks, of Camden, for defendant.
LEAMING, V. C. Petitioner seeks a divorce from her husband upon the statutory ground of willful, continued, and obstinate desertion upon his part for a period of two years. The petitioner alleges the desertion to have occurred May 23, 1910, and to have thereafter continued until the petition was filed. The petition was filed April 18, 1913.
At the hearing petitioner introduced in evidence the files in a former suit brought by her against defendant. This former suit was under the provision of the twenty-sixth section of our divorce act (P. L. 1907, p. 474), which section enables a wife to procure a decree of this court against her husband for suitable support and maintenance in case the husband, without any justifiable cause, shall abandon her, or separate himself from her, and refuse or neglect to maintain and provide for her. The bill in the former suit was filed January 11, 1912, and was based upon abandonment by the husband May 23, 1910, on which date it was averred by that bill that the wife left her husband by reason of his extreme cruelty. It will thus be observed that the success of the wife in her former suit was dependent upon her ability to establish such extreme cruelty upon the part of her husband as justified her in leaving him May 23, 1910, and remaining away from him; in other words, establishing his constructive desertion on the date named and his failure to support her after that date. In that suit the husband (defendant herein) was duly served with process of subpoena ad respondendum and failed to answer. After a decree pro confesso, reference was made to a special master in the ordinary course, and upon the evidence taken before the master a final decree in the cause was signed by the Chancellor September 17, 1912, in which decree the defendant was ordered to pay to his wife (petitioner herein) $4 per week for her support. That decree still remains in full force and effect, and no application for relief from its operation has at any time been made by defendant. When read in connection with the bill on which it is founded, that decree is a direct adjudication in a suit between the parties to the present suit that on May 23, 1910, the present petitioner was justified in leaving the home of the present defendant by reason of his extreme cruelty and was justified for the same reason in remaining away from that home until September 17, 1912, the date of that decree. So long as that decree stands unchallenged as the final adjudication in that suit, I am unable to find any ground upon which defendant can invoke a retrial or re-examination of the same issues. In Smith v. Smith, 55 N.J.Eq. 222, 37 Atl. 49, a decree for support is held to be conclusive of the fact of desertion in a subsequent suit for divorce for the same desertion; only the subsequent conduct of defendant touching the issue of continuity and obstinacy of the desertion was considered in the present suit the same constructive desertion of defendant—that of May 23, 1910—is made the basis of relief as that upon which the decree in the former suit was founded; the former decree must therefore be regarded as conclusive to that extent and the inquiry in this suit must be confined to the ascertainment whether the desertion was willful, continued, and obstinate for a period of two years immediately preceding the commencement of the present suit, for the period of desertion which must be made the foundation of a divorce on the ground of desertion is the two years immediately preceding thecommencement of the suit. Myles v. Myles, 77 N.J.Eq. 265, 76 Atl. 1037.
During the two years preceding the commencement of this suit there appears to have been no real change in the relation or attitude of the parties from that which had existed prior to that time. The husband claims to have invited and desired his wife's return and to have provided a home for that purpose. In my judgment he has at no time in good faith sought or desired his wife's return or made the slightest effort to induce her to believe that she would be received or treated as a wife in the "home" to which he refers. His futile effort at final hearing to establish her want of chastity, which he claims to have existed both before and since the separation, reflects not only his present mental attitude toward her, but the attitude which has, in my opinion, existed during all of the period in which he professes to have desired her return. Nor has his demonstration of his inability to comply with the court decree, which requires him to pay $4 per week for the support of his wife and children, been calculated to inspire confidence on the part of either his wife or the court in his professed desire for them to share his home. I find nothing in this case to justify the belief that the husband at any time since his wife first left his home by reason of his cruelty has extended to her by either words or conduct any reasonable ground for the belief that he really desired her return or that she would receive the treatment due to a wife in the event of her return.
I will advise a decree of divorce nisi.