Opinion
Decided October 9th, 1935.
1. Where a final decree was entered in a maintenance suit in favor of the complainant wife, based on a stipulation made in open court rather than on evidence, and the stipulation was entered under a misapprehension on the part of the defendant husband and his counsel as to its legal effect, whereby the defendant lost a substantial right through accident and without any intention on his part or his counsel to lose it, viz.: the right to sue for divorce, inasmuch as the final decree impliedly adjudicated that the husband had abandoned the wife, held, that such adjudication of abandonment is jurisdictional, and the final decree was therefore opened and set aside and an order made consolidating the two suits, so that the husband's divorce petition became a counter-claim in the maintenance suit.
2. The complainant held to have left the marital bed and not returned at any time. However, the defendant did not make such just advances as he should have, and it is not improbable that such just advances would not have been successful in securing a reconciliation.
3. Although complainant quit defendant's bed, it did not justify his separating from her after only four months, especially since he was partly at fault for the disagreements that had arisen. Held, defendant has failed to prove willful, obstinate and continued desertion by his wife.
4. Defendant has not neglected or refused to maintain and provide for his wife and family in a suitable manner and therefore is not guilty of abandoning her.
5. Since the final decree was opened to let in defendant's alleged cause of action, and after full hearing it now appears he has no such cause of action, it follows that the original stipulation for a final decree calls for a re-entry of the decree.
On appeal from a decree of the court of chancery advised by Advisory Master Herr, who delivered the following opinion:
"On March 11th, 1933, a final decree was entered in the above entitled cause in favor of complainant for separate maintenance for herself and the children of the marriage in her custody, in the sum of $200 per month. This decree was based not upon evidence but upon a stipulation made in open court and dictated into the stenographic minutes of the hearing, to the effect that the parties had arrived at an adjustment of their difficulties; that the defendant was willing to pay the sum of $200 per month for the support and maintenance of his wife and children in full for all expenses, including the upkeep of the house, of which the use was conceded to the complainant, providing for the custody and visitation of the children and providing that a final decree might be entered thereon to carry into effect the terms of the stipulation.
"On September 28th, 1933, the defendant, Howard W. Pierson, filed a petition for divorce in this court against the complainant herein on the ground of desertion. (Docket 98-411), and was met by an answer in lieu of a plea, setting up in bar the final decree theretofore entered in this cause. He then moved in this court to vacate the final decree on the ground that he had not intended to admit the charge of abandonment and so to foreclose himself from subsequently suing for divorce on the ground of desertion as soon as the period of two years should elapse after the separation. This court on that motion determined that the final decree impliedly adjudicated that the defendant had abandoned the complainant (on the authority of Oertel v. Oertel, 92 N.J. Eq. 327), that such adjudication was not based on evidence but on the stipulation, that the stipulation was entered under a misapprehension on the part of defendant and his counsel as to its legal effect; whereby the defendant had lost a substantial right through accident and without any intention on the part of himself or his counsel to lose it. Since the adjudication of abandonment, whether expressed in the decree or not, is jurisdictional, this court opened and set aside the final decree and advised an order consolidating the two suits under the title hereinabove set forth so that the divorce petition became a counter-claim in the maintenance suit. Appropriate pleadings were thereafter filed and both complaints brought to issue in the one proceeding.
"The case has now been fully heard. The proofs show that the parties cohabited as husband and wife for many years with comparative happiness until January, 1931, when the complainant left the marital bed. She testified that she returned after ten days and that sexual relations were resumed for some days or weeks and that the defendant then left the bed and refused to return. The defendant denies that he at any time left the bed. On this issue, I hold that the wife left the bed and did not at any time return. Mr. Albert R. McAllister, a brother of the complainant and a witness produced by her, testified that in February, 1931, he was brought in to try to effect a reconciliation between them and then learned of the withdrawal of Mrs. Pierson from sexual relations with her husband. He thereupon tried to explain to her what the rights of a husband were and she told him that she did not intend to cohabit with him, her husband, as his wife again until she had had from him a satisfactory explanation as to his possession of certain contraceptives which she found in his pocket.
"The trouble between the parties was caused chiefly by continual disagreements as to money matters. The complainant was generally engaged in gainful occupation and had her decided ideas as to how money should be spent, which ideas were not always those of the husband. A secondary cause of disagreement was the husband's frequent visits to a Mrs. Reeves in Brooklyn. While there is no evidence that his relations with Mrs. Reeves were not entirely proper, he still admitted to Senator McAllister on the occasion of the February conference that the frequency of his calls upon her was indiscreet. This conference resulted in an agreement first, that a budget system would be devised and agreed to between the parties and Senator McAlister outlined a tentative budget at that time; secondly, the defendant promised not to see Mrs. Reeves again, except once in order to explain to her why he would be obliged to discontinue his visits, and thirdly, that he would not press his wife for sexual cohabitation until he had definitely given up Mrs. Reeves. His agreement not to seek sexual relations with his wife is very strong corroborative evidence that at that time and prior thereto since the early part of January, it was the complainant and not the defendant who objected to such relations.
"On March 28th, 1931, a Mr. High and a Mr. Carson, friends of the parties, were brought into conference with them. This conference lasted for about four hours. At that time she was overbearing in her manner and showed and said that she did not want her husband around and that his presence was distasteful to her. Her attitude was one of indignation; she said she could scarcely stand being in the same room with her husband. Her attitude was described by Mr. Carson as not such as to leave much hope for a reconciliation, whereas his attitude was more conciliatory. Mr. Carson suggested that there be a short separation. She said that that was exactly what she wanted and that she did not want her husband to come back. Mr. High described her attitude as `belligerent.'
"Finally, on May 4th, 1931, the defendant left the home and has never since returned. He went to a boarding house two blocks away and lived there until October of that year, when he removed to New York. During this period he paid his wife $20 a week together with the operating expenses of the home and certain prior obligations incurred on account of the home, out of a net income of $400 a month. She had additional income of $8 a week from roomers and $30 a week salary. In November of 1931, when the defendant was attending a church meeting in Plainfield, the complainant caused his arrest on a ne exeat, although it appears that at that time he was paying generous amounts, either directly or indirectly for her benefit and that of the children.
"The defendant claims that he made overtures to his wife after May 4th, looking to a reconciliation. She denies this, but admits that in answer to a request by him for a talk she wrote him that she would not meet him except in her solicitor's office.
"Mrs. Pierson testified that after he left the home she requested him on several occasions to return and told him that she would consent to live in New York.
"I am not satisfied from the evidence that the defendant made such just advances as he should have made and I am not satisfied that such just advances if made would have been unsuccessful in securing a reconciliation. His own conduct contributed substantially to the disagreements between the parties. The complainant was not alone at fault. It is very apparent that she was jealous and suspicious of her husband's attentions to Mrs. Reeves and it was his duty under the circumstances to do what he promised in Senator McAllister's presence to do, that is, give up Mrs. Reeves. Instead of doing so, he appears to have continued in the same relations with her as before, a circumstance which contributed greatly to the final separation on May 4th, 1931. He does not claim that he was justified in leaving his home on the ground that his wife was guilty of a matrimonial offense other than her refusal to have sexual intercourse, but this refusal had continued only since January of that year, a period of about four months. Until and unless it had continued for a period of two years, the complainant would not have been guilty of a matrimonial offense justifying the defendant's separation from her. He cannot maintain that it would have so continued had he remained in the home. He has failed to establish, as charged in his divorce petition, that the complainant deserted him on May 4th, 1931, and that ever since that time her desertion has been willful, continued and obstinate. Assuming that she was a deserter as of May 4th, 1931, because of her refusal of sexual intercourse, such desertion was neither willful nor obstinate over a period of two years. This disposes of the defendant's counter-claim.
"In my judgment the evidence fails to establish a cause of action for maintenance in favor of the complainant against the defendant. It is doubtful whether the husband's separation of May 4th, 1931, can be considered an abandonment within the meaning of the act but it is not necessary to determine that question since the evidence clearly establishes that at that time and subsequently up to the time of the filing of the bill, and indeed, ever since, the defendant has not neglected or refused to maintain and provide for his wife and family in a suitable manner. If I were determining her suit on the evidence before me, I would be constrained to deny her the relief prayed for.
"But in my judgment she is entitled to a decree for maintenance in accordance with the prayer of the bill because of the stipulation which was made in this cause as mentioned above. It is true that the decree based upon the stipulation was opened and set aside by this court but that was on the ground that the defendant by suffering the decree to be entered against him had unwittingly and unintentionally precluded himself from subsequently asserting what he believed would be a cause of action for divorce for desertion. It now appears after full hearing that he has no such cause of action. Since it was to let in such cause of action that the decree was set aside, it follows that the stipulation calls for the re-entry of the decree. By the stipulation, had it been drawn in the manner intended, the defendant conceded the right of complainant to a final decree for maintenance subject only to his right, if any, to subsequently bring the divorce suit. Now that it appears that he has no such cause of action, the stipulation controls and I will advise a final decree in accordance with the prayer of the bill of complaint herein.
"The decree should carry the agreed sum of $200 per month, together with counsel fee of $350 and costs."
Mr. Russell S. Henderson, for the appellant.
Messrs. McDonough McDonough, for the respondent.
The decree appealed from will be affirmed, for the reasons stated in the opinion delivered by Advisory Master Herr in the court of chancery.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, DEAR, WELLS, WOLFSKEIL, RAFFERTY, JJ. 14.
For reversal — None.