Opinion
No. 47/310.
06-03-1921
FISCHER v. FISCHER.
McDermit & McDermit, of Newark, for exceptant.
Petition for divorce by Helen Fischer against Philip Fischer. The master reported adversely to a decree for divorce, and petitioner excepts. Exceptions sustained.
McDermit & McDermit, of Newark, for exceptant.
BACKES, V. C. This is an uncontested petition for divorce. The petitioner charges that the defendant deserted her November 17, 1915, and that the desertion was willful, continued, and obstinate for two years. The master, to whom the case was referred, found the desertion to be willful, but was of the opinion that the obstinacy was not established, for the reason, as he states, "that the separation seems to have been as agreeable to the petitioner as to the defendant." He reported adversely to a decree for divorce, and the matter is before me on exceptions.
The facts are somewhat obscured by the loose and disjointed manner of the giving of the testimony—probably due to the foreign or semiforeign tongues of the witnesses. Penetrating the mist, these things are to be seen. The defendant had treated his wife, the petitioner, cruelly for years. Following a quarrel and a brutal assault upon her, the petitioner took refuge at her sister's home, in a nearby town. When she returned the next day she found her husband gone, and the house stripped of the furniture. He had moved the furniture to another house in the same town, where he continued to live. She feared to go there, and her fears were justified by his past conduct. She was not obliged to seek him with a view to a reunion. He made no advances that she should come to him. He did not want her, and had so expressed himself. They have now been apart for upwards of five years. The defendant's removal from their place of abode, coupled with his expressed wish to be rid of his wife, and his failure to seek her and assure her of conjugal treatment in the future, constituted willful desertion on his part. In the face of all of this it cannot be said that the desertion was not obstinate—not against her will. She was willing to return, but not to return to be again maltreated. She was in a receptive mood conditioned upon wifely treatment in the future. Her attitude was correct, and justified by her past experiences.
The exceptions will be sustained.