Summary
In Hartpence v. Hartpence (N. J. Ch.) 121 A. 513, it was held that continuity of willfulness and obstinacy of desertion was not broken by intervening suit for divorce, where it was obviously not brought in good faith.
Summary of this case from O'Brien v. O'BrienOpinion
06-25-1923
HARTPENCE v. HARTPENCE.
William W. Giddis, of Dunellen, for exceptant.
Suit for divorce by William K. Hartpence against Bessie L. Hartpence. On exceptions to the master's report. Exceptions sustained.
William W. Giddis, of Dunellen, for exceptant.
BACKES, V. C. This petition was filed March 4, 1921, and charges willful, continued, and obstinate desertion for two years commencing October 22, 1918. The master finds and reports that the defendant deserted the petitioner on the date named, but advises against a divorce because of a petition by the defendant for a divorce a mensa et thoro, based on extreme cruelty, filed February 11, 1919, and dismissed March 13, 1919, on the ground that two years had not elapsed between the dismissal of that suit and the commencement of this one, and for the reason "that none of the time occupied by the pendency of the proceedings instituted by the defendant in this case against the petitioner in this case can be computed as a part of the desertion in this cause." The rule reflected by the master's reason was said by Chancellor Walker, in McLaughlin v. McLaughlin, 90 N. J. Eq. 322, 107 Atl. 260, to be the settled law in this state. But the rule has been incorrectly applied. It is settled doctrine that pending a bona fide suit for divorce the parties are justified in not living together, and their living apart does not constitute desertion for the time being within the meaning of the statute. Barbour v. Barbour (N. J. Ch.) 118 Atl. 778. The rule is, simply, that the time so taken up should not figure in the calculation; that is, in making the computation the whole period of desertion is to be counted, less the time so occupied. It is like "time out" in a football game, and if, after taking "time out," there is at least two years left, the requirement of the statute is met. Here the desertion commenced October 22, 1918, and continued down to the filing of the petition, March 4, 1921—two years, four months, and ten days. Now, if the time occupied by the prior suit—one month and ten days—be not computed as a part of the desertion, as the rule demands, there still remains more than the required two years.
It is also to be observed that if, after deducting the time taken up by a previous suit for divorce, less than two years remain, the petitioner is not necessarily barred, because such a suit stands merely as evidence in the cause on trial that the separation was not willful and obstinate during its pendency, and, like other evidence, may be outweighed and overcome, as it was here overcome. Here it appears clearly that during the three months preceding the institution of the suit, and for nearly two years after its dismissal, the desertion was willful and obstinate and that during its pendency the mental attitude of the defendant underwent no change. Biddle's Divorce, p. 90, and cases cited.
The master also overlooked a well-recognized exception to the rule within which this case falls. The continuity of the willfulness and obstinacy of the desertion was not broken by the intervening suit, which was no sooner begun than dismissed, because obviously it was not brought in good faith. Weigel v. Weigel, 63 N. J. Eq. 677, 52 Atl. 1123; Von Bernuth v. Von Bernuth, 76 N. J. Eq. 487, 74 Atl. 700, 139 Am. St. Rep. 784. That suit is to be disregarded in computing the period of desertion.
The exceptant urges the point that as more than two years elapsed between the time of the dismissal of the a mensa et thoro action (March 13, 1919) and the service of the citation in this suit (March 19, 1921), this suit was not prematurely brought, even adopting the master's ruling. He relies upon the opinion of the Chancellor in Rinehart v. Rinehart, 91 N. J. Eq. 354, 110 Atl. 29. I do not think that case is helpful to him. The petition was filed March 4, 1921, and the citation was tested the following day. The statute requires that the desertion be continuous for two years, and that necessarily implies two years before the filing of the complaint. Gordon v. Gordon, 89 N. J. Eq. 535, 105 Atl. 242.
The exception is sustained.