Opinion
No. 38/257.
03-06-1915
COLE v. COLE.
Paul A. Queen, of Flemington, for petitioner. John H. Palmer, of Jersey City, for defendant.
Suit by Levi K. Cole against Josephine Rose Cole for divorce. Petition dismissed.
Paul A. Queen, of Flemington, for petitioner. John H. Palmer, of Jersey City, for defendant.
BACKES, V. C. The petition, which was filed June 20, 1914, alleges that for more thantwo years then last past the defendant willfully, continuedly, and obstinately deserted the petitioner. It further alleges that the parties were married on June 14, 1909, and cohabited until the 15th day of April, 1912. It is an undisputed fact in the case that, during the period of two years next preceding the filing of the petition, the petitioner made no effort whatever to induce his wife to live with him—I cannot say, return to him, because of the fact that she never lived with him in a home provided by him, which she left. According to the petitioner's explanation, as I recall it (the testimony has not been transcribed), his failure to seek his wife was due to what she said to him at a meeting they had in New York in November, 1911, which, according to his version, was that, unless he (the husband) came to see her oftener, she would run around with other men. This ground is so feeble that, in the light of the other testimony in the case, it falls with its utterance, for, at that meeting, he gave her money to pay her transportation to his home in Stanton, thereafter paid her regularly an agreed allowance, and later had letter communication with her, in which no reference to the remark was made. And, if the defendant did make it, which she denies, it is likely that it was not made in the spirit in which the petitioner now presents it. It is quite apparent that he, at that time, had no apprehension that his wife would put the threat into execution, and, if he had, all the more reason why he should, during the two years next preceding the filing of the petition, have extended to her his protection. His conduct during this time is much more persuasive of an abandonment by the petitioner than that of a desertion by the wife. During their married life the petitioner, with the exception of one week, lived at Stanton, where he was raised. His wife and their child lived with her parents in Bayonne. From September, 1910, until April, 1912, the petitioner contributed $3 a week towards the support of his wife and child, and it appears that the wife's living at her parents' home was by mutual acquiescence. On April 15, 1912, the petitioner registered and mailed to his wife's sister, with whom the wife was then living, a formal notice, in which he stated that thereafter he would not be responsible for his wife's debts. The wife then consulted her friend, the late Mr. Charles W. Fuller, to intercede with her husband. Mr. Fuller, on April 20th, wrote a very kind letter, in which he spoke of differences between the two, stating that he could not see why they should be at variance, and asked the petitioner to make an appointment to "see if you and the daughter of my old friend cannot reconcile your differences." To the tender of Mr. Fuller's good offices, the petitioner made an evasive reply. Mr. Fuller again addressed the petitioner on April 26th, in which he again stated that he saw no reason why the two should not be living together happily, and that he thought that the misunderstanding could be cleared up, and asked if the petitioner would not arrange to come to his office some day and meet Mrs. Cole and talk the matter over. To this letter the petitioner curtly replied, thanking Mr. Fuller for his fatherly kindness, adding that:
"You know your business and I know mine, so I think you had better let it rest at that."
Before this time, and on February 21st, a brother of the defendant wrote to the petitioner an exceedingly friendly and interceding letter, in which he deplored the strained relations existing between his sister and the petitioner. This letter the petitioner returned, addressed to the brother's employer, stating:
"Inclosed sent to the wrong address. Please inform the sender to mind his own business and keep out of other people's affairs."
The resentment of the brother's intervention and the intolerance of Mr. Fuller's efforts show very plainly and exactly the petitioner's attitute of mind towards his wife during the period when, as he in his petition alleges, she deserted him. Instead of soliciting the companionship of his wife, which was incumbent upon him, he resisted her efforts looking towards a reunion. The actionable period in causes for divorce on the grounds of desertion, as laid down in Myles v. Myles, 77 N. J. Eq. 265, 76 Atl. 1037, is the two years next preceding the filing of the petition. During this time the desertion must be willful, continued, and obstinate, and I regard it that it is during this space the husband must make reasonable overtures to his wife to have her return to him, unless it appears that the circumstances excuse him from so doing. In the present case the last advances were made by the wife through her attorney, more than two years before the filing of the petition, and it was the duty of the husband to, at least, meet her halfway. His failure and his continued obduracy remove from the case one of the three necessary requisites upon which a decree of divorce can rest. The desertion, if there was one, on the part of the wife, was not "obstinate," i. e., it was not against the will of the husband, unless there is substance in the point to which I will now advert.
The petitioner's counsel argues that the circumstances of the case show clearly that any attempt upon the part of the husband to secure his wife's return would have been unsuccessful, and for that reason he was excused from making it. It is remarkable that his client on the witness stand did not take this position. His ground was not that reasonable efforts would be unavailing, but that he did not put them forth because of the New York incident, of which I have already spoken. In his brief, counsel relies upon the opinion of Hall v. Hall, 60 N. J. Eq. 469, 46 Atl. 866, in which the Chief Justice,speaking of the obligation of a husband to put an end to the separation, says:
"But the law does not impose this duty upon the husband in every case arbitrarily and without regard to the facts and circumstances by which it is surrounded. The husband is bound to make such advances and concessions only where there is reasonable ground to suppose that such action on his part will terminate the wife's desertion. Where it is manifest from the circumstances under which the desertion took place, or from her temper and disposition, or from any other fact in the case, that honest effort on the husband's part to terminate the separation would be unavailing, or, if successful in bringing the desertion to an end, would be so * * * temporarily, the duty of making it does not exist. * * * The burden rests upon the husband of showing the futility of making the effort which the law ordinarily requires of him. * * *"
The admission of the petitioner that he failed in discharging this duty—if we should rest the excuse on the ground he asserted on the witness stand, viz., statements made to him by his wife in New York, in November, 1911—is conclusive that he has not sustained the burden of showing that an effort on his part would have been futile. The proposition advanced by the petitioner's counsel in his argument, that the conduct of the defendant towards the petitioner justified his client in the course he pursued, requires a consideration of circumstances and events in the lives of this couple, prior to the writing of the Fuller letters. Before they were married, the petitioner agreed that he would abandon the country for the city. After they were married, they each went to their respective homes. In April following the marriage, the petitioner went to live with his wife at her parents' home. He tried city life for a week, found it not to his liking, and returned to Stanton, where he resumed work on his father's farm. The petitioner's parents were in comfortable circumstances and lived in a commodious farm house adjoining which, some 150 feet away, was a small building called a cottage, habitable, it may be admitted, in which he wished his wife to live with him. In the month of June, 1910, the defendant and her sister went to the petitioner's parents' home, to see the petitioner and to learn his plans. The defendant says that the petitioner's father treated her harshly, ordered her from the house, and told her that he did not want her to put her foot on the place again, and on this, or some other occasion when the defendant was there, the petitioner's mother told her that "nothing would be righted on the farm"—meaning that the defendant would not be welcome. This is denied. The petitioner's letters to his wife, however, remove all doubt. In October following this visit, he wrote to his wife, in reply to her letter in which she suggested going to him:
"It would do you no good to come here as my folks have trouble enough without having any more and you would simply be ordered away."
And later, in June, 1911, after his wife had, presumably, intimated her desire to join him, he said:
"I don't know what to say. If you only had stayed away that time things would have been all right. I hope they will be soon. Of course I want you with me, dearest, but I cannot help that you are not. Don't worry and all will come all right."
To my mind, these excerpts are absolute confirmation of the wife's story that she was ordered, and told to stay, away. I believe it was the petitioner's wish that his wife should live with him in the cottage, but that is as far as he ever went in providing a home. He says he repeatedly offered her a home in the cottage, which she declined, but admits that she offered to live with him in Stanton off the farm, in such a home as he could provide. He says he could not afford to buy furniture and his father would not permit him to remove that which was in the cottage. In view of what took place between the petitioner's parents and his wife, a home, in the common-sense definition, would have been impossible in the cottage, and under the circumstances the wife would have been justified in declining to go there, had her husband offered to take her. She says that to his frequent requests that she should live with him in Stanton she had expressed her willingness, but that the petitioner never in fact demonstrated to her that he had a home, there, to go to, either on or off the farm, and this appears to be so from a letter which she wrote to her husband in July, 1910, in which she said:
"When I was at White House on June sixth, you asked me if I would come to Stanton this summer and live with you and I said yes. Since then you have never mentioned the subject to me, have not said what plans, if any, you were making, whether you wanted me to come, or when. I have written several times asking what you wished or expected me to do, still you never give me any satisfaction. Now I want you to write and tell me when you will be ready for me, so I may get things for myself and baby fixed."
The testimony does not show that he made any reply, and later letters, to which I will refer hereafter, clearly evince that the petitioner made no honest effort to secure a home in which to house his family. He even grudged the pittance of $3 a week, which he contributed towards her support, and we find him on February 15, 1912, casting his wife adrift, when he wrote to her:
"I do not want to hear from you again or see you. It is shameful the way you have used me and falsely accused me, and still you keep on at it."
The defendant wrote to him on February 20th and on February 27th. These letters were returned unopened. The defendant's brother's letter, it will be remembered, was returned about this time; and on March 6th the defendant sent to the petitioner a picture postal card, upon which was written: "Baby is two years old to-day, the 6th of March. We love you dear"—and this was returned. These unopened letters I directedto be opened and spread upon the record. Counsel now vigorously protests and argues that knowledge of their contents ought not to be charged to the petitioner and that they are not evidential in the cause. Upon what theory in law he rests his argument is not made clear. The fact that they were returned without being read, that the baby's pleading postal card was rudely returned, and the brother's intercessions were rebuffed, put to utter rout the petitioner's professions of love for his wife and his desire that she should live with him—so often made under oath. He had opportunity to know of his wife's love for him, and of her desire to mate with him; but he closed his eyes to her letters, and his heart to her pleadings, and he cannot now be heard to say that he was ignorant of all this. These letters are replete with expressions of tender love, of wifely affection, and pitiful cries of inconsolable despair. But assuming that he did not know because he did not care to know, how stand his pretensions of love, so often whimpered on the witness stand, in the face of his rejection of the baby's birthday greeting? "We love you dear," was his wife's message, which he contemptuously and scornfully returned. But that is not all. We later find the petitioner turning dissembler, for on March 14th he wrote to his wife, "Will there never be any letters," to which she replied, calling his attention to his letter in which he said that he did not wish to see or hear from her again, and also that she had written him two letters, which he had returned unopened. She also rehearses the more important events of their married life, their disagreements, assures him of her love, and offers to meet him with a view to a reconciliation at any time or place that he might fix, and adds: "I am, and always have been, ready to occupy a suitable home with you." This letter, I assume, was answered; but, on April 4th, the petitioner wrote to his wife, as follows:
"They say actions speak louder than words. Your silent contempt proves the old saying, for two weeks have passed since my last letter to you, but no answer. So I think I had better give up. I only wish that the truth had dawned on my numbskull before that you never had any intention from the very start to live with me, or else you never would have so persistently refused to share a home with me, which I offered time and again and urged you so long to accept. The fool that I was to get fooled and led by the nose as I did, and though I knew it, did it again. But never mind, you have reconciled me to the parting of our ways, so what's the use to growl about one's fate, that don't make things any better."
The next day he recanted, and wrote:
"Since writing yesterday, I have read your letter of Mar. 19th over again, and although it is full of untruthfulness, I will offer you a home here in Stanton, which is already furnished, and will meet you at the station soon as I hear from you and the time the train arrives. Of course you have the money I gave you to come with, which was long ago, and which I told you to use for that purpose, which was outside of what I gave you regularly. Let me hear from you immediately."
This last letter was not answered, and then followed the formal notice that the petitioner would not be responsible for his wife's debts, and the Puller letters and replies, mentioned in the earlier part of this memorandum. Counsel seems to be of the impression, and urges, that the letter of April 5th altogether absolves the petitioner of any previous shortcomings, and that the failure of the wife to forthwith accept his terms is proof plenary of his wife's invulnerability to entreaties and of the futility of any further effort. I cannot regard the letter and the wife's silence as having this effect. It is true he offered her a home in Stanton, but where was the home to be? He had provided none away from the farm, and the cottage, under the circumstances, could not be dignified as one. But, even assuming that the petitioner had the right to demand of his wife that she live in the cottage, in such propinquity to his parents' home, and under such distressing conditions, does the writing of this letter, in view of the petitioner's immediate prior conduct, satisfy the legal requirement that the husband must, in circumstances like those here present, make "such advances or concessions to his wife as might be reasonably expected to induce her to return to him"? In the first place, she had no funds for transportation or means for preparing for the trip, and he knew it, or ought to have known it The money referred to in the letter—$5, I believe—was given to her five months before. There was something more demanded of the petitioner than the writing of this curt note. Where she was to go in Stanton, she did not know. Was she, after her husband had so ruthlessly cast her aside, to humbly and meekly seek him and supplicate for that which was her right? I think not. The law puts upon her no such embarrassment After the way he had abandoned and forsaken her, it was his duty, especially after she paved the way, which she did by her letters, to go where she was, consult as to their future and give her such assurances as ought to lead her to believe that she was not only to enter a home of happiness, but also to re-enter his heart and affections. As a full performance of this duty, the letter falls far short of the mark. It is manifest, to a certainty, that had the petitioner met the defendant in a straightforward, manly fashion, she would readily and without reservation have submitted to his persuasions.
The evidence does not show that the wife willfully deserted the husband, or that the desertion was obstinate. As I have said, the evidence is much more favorable to the view of the wife being the injured, instead of the injuring, party. The petition will be dismissed, with costs, including counsel fee to be fixed upon application.