Summary
In Pry v. Fry (N. J. Ch.) 100 A. 839, Vice Chancellor Lane held that, in order to establish desertion justifying a divorce, a husband need seek his wife's return only where there are reasonable chances of his success.
Summary of this case from O'Brien v. O'BrienOpinion
No. 40/440.
02-13-1917
FRY v. FRY.
William Tyacke, Jr., of Newark, for petitioner.
Divorce petition by Edward A. Fry against Susan Fry. Exceptions to master's report sustained, and divorce advised.
William Tyacke, Jr., of Newark, for petitioner.
LANE, V. C. This is a petition for divorce for desertion. The master reported adverse upon the ground that the desertion on the part of the wife was not proven willful and obstinate. He found that the husband had not made proper attempts to induce his wife to return. The report is dated the 24th of November, 1916. The attention of the master was not called to the case of Marsh v. Marsh in the Court of Errors and Appeals, decided November 20, 1916, but not published until the issue of the Atlantic Reporter of January 18, 1917 (99 Atl. 409). The court, reversing this court, reannunciated its decision in Hall v. Hall, 00 N. J. Eq. 470, 46 Atl. 866, and the rule therein formulated to wit:
"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 or 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 only temporarily, the duty of making it does not exist."
To the same effect is Rogers v. Rogers, Court of Errors and Appeals, again reversing this court, 81 N. J. Eq. 479, 86 Atl. 935, 46 L. R. A. (N. S.) 711. See, also, in this court Rector v. Rector, 78 N. J. Eq. 386, 79 Atl. 295. I have examined the depositions taken, and have come to the conclusion that the desertion by the wife of the husband is clearly proven by evidence, corroborated, and that the facts and circumstances indicate that no attempt upon the part of the husband would have been successful. This results in sustaining the exceptions, and I will advise a decree of divorce.
The parties were married on the 1st of November, 1908; the defendant resided in New York with her father, the petitioner in New Jersey; the defendant was about the age of 28. Upon the night of the marriage they went to Newark and set up their matrimonial establishment in a house on Third street. They lived together for 30 days. The husband says that during the time they lived together there was considerable trouble; that the defendant refused to get his meals and to perform the duties of a wife; that about the twenty-seventh of the month she went away to her sister's in New York and stayed 2 days, and then made arrangements to move all her belongings from Newark to her father's house in New York; that she returned on the 28th; that they had a conversation, in which the defendant asked the petitioner to forget past differences; that on the 30th when he came home about 6:30 at night he found that she had departed and taken with her all of the furniture; that a week later he received a letter from the defendant, in which she said she wanted him to come over and live in New York (his position at that time was with Hahne & Co., of Newark); that she went back to live with her father; that she went to Hahne & Co., and demanded his salary after this time, and made trouble for him; that he gave her occasionally $5 or $10 a month; that he did not see her for two years after the separation;that he met her in Asbury Park on the boardwalk; that he then asked her what she was doing down there, and she wanted to know if he would contribute to her support, but not to live with her; that he told her that he refused to contribute unless she lived with him; that during the two years preceding the filing of the petition for divorce he had contributed nothing to her support; that he saw her two or three times afterwards at Asbury Park, and practically the same conversation took place; that he wrote her after the first two months, asking her to come back and live with him in Newark (he has no copy of the letter); that he got no answer; that he also telegraphed her to telephone him several times, and got no reply. The desertion took place on the 30th of November, 1908. The petition was not filed until September, 1915, a period of seven years. The petitioner, interrogated by the special master, said that the reason why he waited this length of time was that he still hoped that she might come back. He also testifies: That he endeavored to communicate with her through her brother, who was in Buffalo, and that the brother came back, and, after having seen the wife, told the petitioner to get rid of her. Elizabeth McDonnough testified that in November, 1908, she and her husband lived at 103 Third street, Roseville, Newark, N. J., where the Frys lived; that at the end of November, 1908, Mrs. Fry packed up her things and went back to New York. That after the Frys came to live at Third street the defendant went to New York three or four times every week, and that she told the witness that she desired to live in New York. That on many occasions she saw the petitioner walking up and down the street, waiting for his wife to come back in the evening, sometimes as late as half past 10 or 11 o'clock. That the defendant complained of being ill, and said that there was no one in the house to take care of her if she was ill, and if she was in New York there would be some one. That she knows that the petitioner got most of his meals for himself. That the defendant never complained to her of the petitioner's treatment. That upon one occasion when the defendant claimed to be sick in bed, after the petitioner had gone out, the witness discovered that the defendant had taken off nothing but her waist, and that she had her shoes on, and that she said, almost as the door closed upon petitioner: "Gee, he is a nuisance. I wish he would go and drown himself." And, further: "Are all men such a nuisance? Dad didn't used to be such a nuisance as that around the house." That there was really nothing the matter with the defendant upon that occasion. That always when they were together the husband treated the wife properly. That some three weeks after the defendant had left the petitioner she came back and got a picture she had left in care of the witness, at which time she made no inquiry about her husband. That she had heard words between the parties during the 30 days that they lived together. The petition and citation were served personally, and the process server testifies that at the time of service the defendant said that she expected something like that. There is nothing in the evidence which indicates that the husband was in any wise responsible for the separation, or that he acquiesced therein. Residence of petitioner and unwarranted desertion on the part of the wife is fully corroborated. The testimony, considered as a whole, also indicates that any effort (if under the circumstances such were necessary) which the husband might make would have been unavailing. There is therefore nothing that this court can do in view of the decisions of the Court of Errors and Appeals but to grant the decree.
My analysis of the testimony leads me to the conclusion that this girl, 28 years old, who had been living with her father up to the time of her marriage, had no conception of the duties and the responsibilities of married life, and that after a 30-day trial she definitely came to the conclusion that her life with her father was much preferable to that with her husband, and that her attitude of mind can well be summed up in the language of Mrs. McDonnough: "Are all men such a nuisance, Dad didn't used to be such a nuisance as that around the house." That she did not change her mind is indicated by the statement to the process server that she expected something of that nature. It may fairly be assumed from the testimony of Mrs. McDonnough that what the wife told Mrs. McDonnough she also very clearly indicated to her husband during the 30 days that they lived together. That the husband did not act in the manner which he did so that he might procure a divorce is indicated by the fact that the petition was not filed until nearly seven years after the desertion.
I will sustain the exceptions and advise a divorce.