Opinion
02-13-1901
MOAK v. MOAK.
Fred W. Van Blarcom, for petitioner.
Petiton by Martha Moak against Humolt D. Moak. Heard on testimony before the master, his report, and exceptions thereto.
Fred W. Van Blarcom, for petitioner.
GREY, V. C. (orally). The petition in this case is filed by Martha Moak against her husband, Humbolt D. Moak, stating their marriage on August 7, 1892, in the state of New York, and his desertion in the month of May, 1894, going to Colorado, and since returning to the state of New York. During the period of the husband's absence the wife moved her residence into New Jersey, and at various places in the state of New Jersey she claims to have resided for the last three or four years. There was no defense by the husband. The case was referred ex parte to a master, and, after taking the testimony of the petitioner and several additional witnesses, the master was of opinion, and has advised, that there has been no sufficient proof satisfactory to him to establish the fact of the bona fide residence of the petitioner within the state of New Jersey, and no testimony sufficient to entitle the petitioner to a divorce according to the prayer of the petition. The report of the master further states that whatever elements of proof there were in the case going to establish the fact of the desertion are shown almost entirely by the testimony of the petitioner herself, and that, under the well-known rule that the petitioner cannot establish by her uncorroborated testimony the essential incidents entitling her to a divorce, the master was of opinion that the petitioner has not shown a case entitling her to a decree. Upon the coming in of that report, exceptions were filed by the petitioner to all grounds upon which the master has refused to advise a divorce; and the matter is now here on the ex parte testimony before the master, and his report and exceptions thereto.
Upon hearing argument of counsel, I am of opinion that the master erred in holding that there is not sufficient proof to show the bona fide residence of the complainant in the state of New Jersey. I think the testimony is sufficiently credible and of sufficient weight, as given by disinterested witnesses, to establish that fact. The master finds that the marriage has been sufficiently proven. I agree with him. The difficulty in the case is the character of the proofs offered to establish the element of desertion. It appears that the parties lived upon kindly terms as husband and wife up to the time when the husband went to Colorado; that they parted in good terms, the wife apparently assenting to his departure to Colorado, which was for the purpose of taking employment there, and not in any way because of any difference with the wife or of any desire to be rid of her. After his arrival In Denver the husband for a few weeks corresponded with his wife upon affectionate terms, and then the correspondence on his side ceased. The wife claims that she wrote to him (although no copies of the letters are produced), getting no replies, and finally received one of her own letters returned to her, marked "Not found," and from that time all communication between them, or effort for it, ceased. That was in May or June, 1894. From that time until the time of the taking of testimony in this case there has been neither support of nor association with the wife by the husband. The testimony is absolutely colorless to characterize this separation, and is entirely lacking any evidence to show any intention on the part of the husband to abandon the wife, save as it may be indicated by the statement of the wife herself of two or three interviews which she had with her husband,— one at his mother's residence, as I recall it,— where she asked him why he would not support her, and he gave some evasive answer. The conversation was extremely narrow in its limits; did not appear to have led to any suggestion on either side that they should resume their marital relations, or to have induced any declaration by the husband which gave color to or explanation of his separation from his wife, which appears to have been wholly voluntary on his part. Neither at this nor at either of the later interviews between them was there any indication of the husband's feelings towards his wife, except that there was an absence of any invitation by him to her to resume their marital relations, and of any expression of affectionate feelings towards her of any sort. The other two occasions when the wife says that she met the husband happened on the street They interchanged but a word or two,—none of a character to give color to the separation of the parties, except that they might suggest inferences that at such meetings, after a long-continued separation, the husband might have been expected, if he had any desire for a continuance of connubial relations with hiswife, to have indicated it by some approach to her. If I should pass upon the sufficiency of this evidence to establish a desertion, I think. in its present aspect, I should say it was not sufficient The long period of time which the parties have been separated leads me, however, to think that there probably is evidence, not yet produced, which would throw light upon the character of this separation. The proof now goes but a little way further than to show separation and non-support. Desertion, in the sense contemplated by the statute, means an abandonment during the statutory period without intent to return.
But, as the case now stands, there is another ground which prevents the making of a decree of divorce; that is, all of the essential incidents which in any degree indicate a desertion depend entirely upon the uncorroborated testimony of the petitioner. None of the other witnesses show the relations of the parties at the time of the separation, nor the absence of communication by letter between them, nor any other facts than mere separation. This court has always refused to grant a divorce upon the uncorroborated statements of a petitioner as to essential facts. Tate v. Tate, 26 N. J. Eq. 55, and cases there cited. The court of appeals has approved the principle thus declared. McShane v. McShane, 45 N. J. Eq. 341, 19 Atl. 465. In this respect the master's refusal to advise the decree was correct But as there are indications that further evidence may characterize and support the proofs already offered, so as to present a case to Justify a decree, I will advise an order that the case be sent back to the master, with this memorandum opinion, and that petitioner's counsel be at liberty to submit further proofs to the master, to show what was the character of the separation and nonsupport on the part of the husband, and to prove by additional testimony, and by other witnesses than the wife alone, an actual desertion,—desertion in the sense of abandonment.