Opinion
02-12-1894
PAYNE v. PAYNE.
George Biller and J. Frank Fort, for petitioner. Leonard Kalisch, for defendant.
Petition by Ellis J. Payne against Barbara J. Payne for divorce on the ground of desertion. Petition dismissed.
George Biller and J. Frank Fort, for petitioner.
Leonard Kalisch, for defendant.
GREEN, V. C. The petitioner alleges that the defendant deserted him on the 4th of April, 1891, and that her desertion has continued from that time on, and that the said desertion has also been willful and obstinate. The burden of proof is on the petitioner. The parties have lived separate and apart since April 4, 1891, and it is incumbent on the petitioner to prove that this separation was a willful desertion on the part of his wife, and, next that it has been obstinate. The parties were living in rooms in the city of Newark, and had received notice, some time in the winter of 1890-91, that the landlord would require the use of those rooms, and that they must make other arrangements. Payne says he told his wife to secure other quarters, and that she neglected to do so. She says that she found suitable lodgings, but that he objected to take them on account of the rent. It became at last necessary for them to move, and the undisputed facts are that Payne hired a carman who, under his directions, moved a portion of the furniture to rooms in the same street, and on the same day the wife engaged the same carman to move the remaining household furniture and goods to rooms where her brother and sister-in-law were living. Payne says his wife had told him that she would not live with him any longer, as she was tired of married life, and that she divided the goods before they were moved, and that he told her where he had engaged quarters, and that she refused to go with him. She, on the other hand, says that he did not tell her where he was going to move to, and that she only knew from watching where the carman took the things. She says that her husband took such of the household goods as he wished, and that she took what he had left; that not knowing where to go, and it being necessary for her to leave those quarters, she took up her abode with her own relatives. The only corroborative evidence of the story of either one of these parties is the testimony of the daughter of the petitioner, who says that on some one occasion, if not more, Mrs. Payne said to her that she was tired of married life.
I think the petitioner has failed to establish that the separation of himself and wife, on the 4th of April, was a willful desertion on her part. If her story is true, she certainly did not desert him, and nothing appeared on the trial to indicate that she was not as much entitled to belief as her husband. But if desertion, was it obstinate? There is no pretense on his part that he expostulated with his wife when she, as he says, told him that she would not go with him. He seems to have made no effort whatever to change her mind from such determination, if she had formed it, and the undeniable fact is that he engaged a man to movea portion of the furniture to quarters which he had rented, and left with her another portion, to be taken by her where she saw fit, when he should be gone. It would be impossible to conceive of a more clearly-proved case of acquiescence than this. He says that, on the night of the separation,—but there is some little confusion as to whether it was that night or two days after,—he went to the house where she was living and asked her to return, and that she refused. She denies such request, and says that he came after some clothes. He does not pretend to have ever asked her to return to him, except on this one occasion, or to have ever remonstrated with her for her continued absence. He knew where she was, and often met her on the street, and passed by the place where she lived, yet he never spoke to or noticed her. It has been repeatedly held in this court that, if a party acquiesces in the absence of the other, and remains content that the separation shall continue, he cannot successfully ask the decree of this court for an obstinate desertion. Herold v. Herold, 47 N. J. Eq. 210, 20 Atl. 375; Broom v. Broom, 47 N. J. Eq. 215, 20 Atl. 377, affirmed in 49 N. J. Eq. 347, 25 Atl. 963; Chipchase v. Chipchase, 48 N. J. Eq. 549, 22 Atl. 588, affirmed in 49 N. J. Eq. 594, 26 Atl. 468; Olcott v. Olcott, (N. J. Ch.) 26 Atl. 469.
The petitioner seeks to excuse his inaction and indifference by casting an imputation upon his wife's conduct in living in the same house with a man named Thompson, and to sustain him in this position he relies upon the testimony of his daughter. The testimony of the daughter, however, fails to show any occasion when the conduct of Mrs. Payne, in her relations with Thompson, can be said to have been improper, or even indiscreet, except once, and that cannot be said to justify more than a suspicion. This evidence was only admissible, under the pleadings, for the purpose of explaining or excusing Payne's acquiescence in his wife's separation, on the theory that he should be excused if he really believed his wife's relations with Thompson were not what they should be. The fact that he allowed his young, unmarried daughter to also become an inmate of the Thompson house, and to be there under the charge and keeping of his wife, goes far to disprove any such belief on his part. Mrs. Payne explains her going to the Thompson house by saying that she moved to it at the same time her brother and sister-in-law took up their residence there, and that she hired a room in the house, for which she paid the rent. She has been forced, ever since her separation, to support herself. While the propriety of her living in this house, and doing the work she appears to have done in the way of housekeeping, might be questionable in some persons, according to the way in which they have been brought up and lived, it might not be so in others. I think the evidence fails to show that Payne had any just grounds for believing his wife unfaithful, and I do not think that, under the circumstances, he is to be excused for his neglect to use proper efforts to bring the separation to an end by a reconciliation. The petition should be dismissed with costs.