Opinion
06-09-1893
GOLDSTEIN v. GOLDSTEIN.
Joseph S. Parry, for petitioner. Charles L. Carrick, for defendant.
Petition by Samuel Goldstein against Katherine Goldstein to obtain a divorce from his wife, on the ground of desertion. Defendant filed a cross petition asking a divorce on the same grounds. Petition and cross petition dismissed.
Joseph S. Parry, for petitioner.
Charles L. Carrick, for defendant.
GREEN, V. C. These parties were married in Constantinople, where two children were born to them, both girls, one being now 29 and the other 26 years of age. The petitioner is a missionary connected with the American Tract Society, and in the receipt of $75 a month. He returned from Constantinople in 1879, and his wife and her two daughters followed about two years thereafter. In 1884, they were living in East Sixth street. New York, and had considerable trouble from time to time from various causes; it being alleged on the part of the wife that her husband had repeatedly struck her, and had been otherwise cruel to her and had neglected to properly provide for and support the family. In May, according to the statements of the elder daughter and of her sister, Goldstein had forced the former to leave her home, and shortly after that the wife had him arrested and taken before a magistrate in New York city to answer a charge of assault. On the trial of thiscomplaint before the magistrate, he was discharged. He says that his mortification from this transaction was so great that he determined to leave the neighborhood, and that he thereupon procured quarters in Hoboken, and made all his preparations for the change, employing truck men and trucks to move his furniture. He did move most; of the things which had been used in their home, and went to Hoboken, where he has since resided. Goldstein charges his wife with desertion, for not having accompanied him on that occasion, and having afterwards prevented him from becoming reconciled to his family. The act of separation was the act of the petitioner, and, to make his wife guilty of desertion in connection with this act, it must be shown that she was acquainted with the facts relating to his removal, and was informed by him or knew where he was going. She is a German lady, and professes not to speak English. He says that he told his wife and daughter that he had made arrangements for a new home in Hoboken, telling them distinctly where it was, and giving to her a slip of paper upon which the name of the street and number of house was written. The wife denies this, and, the younger daughter, who was home at the time he went away, says that the moving was a matter of surprise to them; that they knew nothing whatever about it until the trucks and men arrived at the house; and that he did not tell them at that time where he was going, nor did they know for a year after where he had moved to. The testimony of Mrs. Thompson, who called at the time the trucks were being loaded, is only to the effect that be told her that he was going to move to Hoboken, and that his wife would not go with him, but she says this remark was made to her in English, and, as the wife does not speak anything but German, she is not presumed to have understood the remark, if she heard it. The wife's desertion cannot be predicated on this testimony. In order to bring her within that charge, after his absenting himself under these circumstances, it must be shown that she has refused to return to him on his proper and reasonable request, or conduct which is tantamount to such a refusal. He does not pretend that lie has made such request, but attempts to put her in the wrong on the ground that he has on several occasions attempted to ascertain her whereabouts and to effect a reconciliation, which she has willfully prevented. He says he did once discover where they lived, but that he was unable to have an interview by his wife's refusal. That they then moved, and he could not again locate them. He, however, knew where his daughters were employed, and might have communicated with her in writing, but has never done so, or attempted to do so. He has on various occasions visited the daughters at their place of business. These two young ladies had perfected themselves in the art of telegraphy, and had obtained positions with the Western Union Telegraph Company, and each now receives $50 a month for her services. They both say that their father did persist for some time in visiting them at their place of employment, and that he caused them considerable trouble and anxiety by his conduct. They both say that on these occasions, while be expressed a desire to have them come and live with him, he did not say that he wished their mother to come, and, on the contrary, stated that he did not want her. The girls were together earning $100 a month, and were the sole support of their mother; from their statement he was desirous of having them with him, but not his wife. While giving due allowance for their prejudice in favor of their mother, I am inclined to believe the statement of both girls,—that he expressed no desire for reconciliation with his wife or to have her return to him; and 1 think the petition should be dismissed.
So far as the cross petition is concerned, I have no reason to change the conclusions I arrived at as announced on the argument, and that was that this case falls within the decisions of Broom v. Broom, 47 N. J. Eq. 215, 20 Atl. Rep. 377, affirmed 49 N. J. Eq. 347, 25 Atl. Rep. 903, and Chipchase v. Chipchase, 48 N. J. Eq. 549, 22 Atl. Rep. 588, affirmed 49 N. J. Eq. 594, 26 Atl. Rep. 468. There is not a particle of evidence to show that the wife ever regretted the separation, or that she was not entirely satisfied with the changed condition of affairs; not only this, but, so far as it was in her power, she attempted to conceal herself and prevent any reconciliation. Under such circumstances, she cannot come into this court and successfully ask for a divorce on the ground of obstinate desertion.