Opinion
Argued October 26th, 1931.
Decided May 16th, 1932.
1. Where it is manifest from the circumstances under which the desertion took place, or from the temper or disposition of the wife, 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.
2. A right to a divorce cannot be defeated by recrimination unless the petitioner be guilty of a matrimonial offense which would entitle the defendant to a decree were the defendant not guilty. Held, that the wife has not sufficiently made out her charges of cruelty which she sets up by way of recrimination to petitioner's charge of desertion.
On appeal from a decree of the court of chancery advised by Advisory Master Moore, who filed the following opinion:
"This action was brought for a divorce on the ground of desertion. A denial was interposed by the defendant and at the conclusion of the hearing the answer was amended by bringing in recriminatory charges of cruelty.
"Careful consideration has been given to the testimony and I am satisfied that the petitioner has established the material allegations in his petition. His testimony was corroborated by witnesses to whose testimony I attached a high degree of credence. On the other hand, the testimony adduced by the defendant was not convincing and I was not much impressed by her testimony. There was considerable contradiction on material points among the witnesses for the defendant.
"As to the recrimination, the charges of cruelty were not sufficiently made out and do not constitute a defense since under the well established rule the facts set up by way of recrimination must amount to a matrimonial offense. Cilente v. Cilente, 104 N.J. Eq. 605.
"The petitioner and defendant lived together for many years until their separation in November of 1924. This separation was by mutual consent and under an agreement of separation whereby petitioner agreed to contribute to defendant's support. The children of the parties took up their residence with the defendant. The petitioner's testimony is to the effect that in December, 1924, he went to the house where defendant was living and asked her to come back to live with him, if not for his sake, for the sake of the children. She refused to return to him, ordered him out, called him vile names and threatened to call the police to put him out. According to his testimony he did not return because of the reception he received from her. A week or two later he sent a friend as his emissary to again ask her to return and she again flatly refused to do so. The older son of the parties overheard the conversation at the time of petitioner's visit and fully corroborates his father. The son continued to live with the mother for several years and until the year 1929. Up to that time he testified he heard his mother frequently say that she would never live with petitioner.
"It is contended on behalf of the defendant that these facts failed to make out the continued, willful and obstinate desertion for two years required by the statute. I am of the opinion, however, that the requirements of the statute have been met. The desertion took place in November of 1924, when defendant refused to return to live with petitioner. It was established that she never did live with him thereafter and that her attitude of mind in refusing to live with him persisted until at least as late as 1929. It is contended for the defendant that petitioner was required to renew his efforts to bring her back to him by continued requests to her to return. I do not so understand the law to be under the circumstances as shown here.
"The court of errors and appeals in Marsh v. Marsh, 86 N.J. Eq. 419, lays down the rule that when it is clear that any effort by the husband to induce the wife to return will be unavailing to terminate the desertion there is no further duty on the husband to make further advances to her.
"The court says: `The husband is bound to do those things which might reasonably be expected to remove the trouble and induce the wife to return. This court in the case of Hall v. Hall, 60 N.J. Eq. 470, formulated the rule on the subject and said: "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.'" Citing Trall v. Trall, 32 N.J. Eq. 231; Lammertz v. Lammertz, 59 N.J. Eq. 649.
"`It would serve no useful purpose to state the evidence in detail, showing the wife's attitude toward her husband. It is sufficient, by way of illustration, to cite a passage from one of the wife's letters, known as the "hound of hell" letter ( Exhibit P-3), which reveals the attitude of her mind and the promptings of her heart, toward her husband. It demonstates to our satisfaction, the utter futility of any attempted reconciliation by him. In view of this letter, which is in accord with much of the testimony in the case, on this point under discussion, any attempted reconciliation on the part of the husband, it seems to us, would have been a meaningless formality. In this case, no such duty existed on the part of the husband. In cases of this kind, the law exacts no such formality.'
"In the present case the husband was called vile names, ordered out of the place and he was threatened with arrest by the wife. This indicates a fixed and unalterable determination on the wife's part not to return to him. This same attitude was shown to his friend who went to see her on the husband's behalf soon after; and by the testimony of the son it was shown that many times during more than four years after the desertion she reiterated her determination not to return. In my opinion, therefore, the husband was not required to make any further advances than he did and I find that her desertion was willful, continued and obstinate within the statute.
"A decree will be advised granting to petitioner a divorce on the ground of desertion."
Messrs. Ward McGinnis, for the appellant.
Mr. Jacob Van Der Clock, for the respondent.
The decree appealed from will be affirmed, for the reasons expressed in the opinion filed in the court below by Advisory Master Moore.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, CAMPBELL, LLOYD, CASE, BODINE, DONGES, KAYS, HETFIELD, DEAR, WELLS, KERNEY, JJ. 13.
For reversal — VAN BUSKIRK, J. 1.