Opinion
07-16-1923
RANKIN v. RANKIN.
Samuel Reibel, of Elizabeth, for petitioner. George A. Douglass, of Newark, for defendant.
Petition by Albert Rankin against Anna Rankin. Decree of dismissal.
Samuel Reibel, of Elizabeth, for petitioner.
George A. Douglass, of Newark, for defendant.
BENTDEY, V. C. This is a petition by a husband for divorce, on the ground of adultery, with an answer which expressly says that the defendant neither admits nor denies the adultery charged. The fact is that the parties separated in the month of May, 1020, and never had sexual intercourse with one another 'thereafter. Notwithstanding that, it is abundantly proved, and not denied, that the defendant wife gave birth to a full-term female child in the City Hospital of Newark on the 6th day of May, 1922.
The answer, however, prays for a dismissal of the petition, upon the ground that in May, 1920, the petitioner, without Justinable grounds, deserted the defendant, and willfully, continuously, and obstinately deserted her down to the time of the filing of the petition in July, 1922, being a period of more than two years. The cases of Rapp v. Rapp, 67 N. J. Eq. 236, 58 Atl. 167, and Young v. Young (N. J. Err. & App.) 119 Atl. 92, not yet officially reported, firmly establish that recrimination of desertion is a good defense to the charge of adultery. The reasons for the rule are sufficiently set forth in those cases and the carefully considered dicta of Chief Justice Beasley in Adams v. Adams, 17 N. J. Eq. 324.
That the petitioner was guilty of desertion I have no doubt. The corroboration of his very suspicious story of the defendant's guilt with Warren Russell is entirely dependent upon the testimony of Martsel, that young man of white blood who told with the utmost effrontery a story of his illicit connection with the defendant who is a negress. It seems to me, as pointed out by Chief Justice Beasley in the Adams Case, that there was no such inherent probability in his story as would stamp it with the appearance of truth. At all times, pretended proof of adultery should be most closely scrutinized where it depends upon the testimony of a party corroborated only by that of a pnrtlceps criminis.
"The reason for a bar," as pointed out by Vice Chancellor Reed in the Rapp Case, "is sometimes said to be that the complainant is in pari delicto and does not come into court with clean hands. In other cases the reason assigned is that it is a logical paradox to grant a divorce to two persons, each being entitled to a decree against the other, and therefore the court will aid neither." (67 N. J. Eq. 237, 58 Atl. 168.)
Viewing this case from either aspect of the rule, it seems to me applicable. If the petitioner, after innumerable acts of cruelty against the defendant, from some of which she can still show the scars of wounds inflicted, deserted her and his two children, then surely his conduct has not been such as to entitle him from this court to any other than his strict legal rights. Derby v. Derby, 21 N. J. Eq. 36; Kretz v. Kretz, 73 N. J. Eq. 246, 67 Atl. 378. I know of no case, nor have counsel been able to discover any, where the precise question here involved has been passed upon in our state. Had the cause of action for desertion matured prior to the adultery committed by the defendant, the cases to which I have referred would be controlling. On the other hand, if the petition had been filed immediately after the adultery and pressed to final hearing, it is clear that the defense of recrimination could not have been pleaded in bar. No advantage of the petitioner's undoubted cruelty can be taken by the defendant, for the reason that it was not pleaded. Jones v. Jones, 18 N. J. Eq. 33, 190 Am. Dec. 607.
In this, as in all other similar suits, the petitioner comes into court to complain of a wrong perpetrated upon him or her with regard to the contract or status of the parties, It is elementary under our jurisprudence that in such a case the complainant, plaintiff, or whatsoever his position may be denominated, must not himself have been guilty of any wrong or neglect of duty upon his own part. As pointed out in 2 Bishop on Marriage, Divorce and Separation, § 345 (Edition of 1891), in an action for damages for personal or other injuries by reason of the defendant's negligence, the plaintiff, to recover, must himself have been free from carelessness contributing to the injury. In an action ex contractu, resting upon the mutual and dependent promises, the plaintiff must have kept his promise. Nor can-one enforce a contract, so called, founded on the violation of a statute, for he himself has been guilty of a wrong in the premises.
Therefore, under the doctrine of the cases cited above, the complaining party is left where he is found because of his own wrong to the defendant in view of the statute, but the breach of whose obligation is the foundation of his cause. Obviously, it cannot be the meaning of these cases that the petitioner's wrongdoing has clothed the defendant with any right to break the law. She is quite as liable to prosecution for her illegal act committed as if the character of her spouse were spotless. Therefore, as I have already said, the reason of the rule is that the petitioner, although he has suffered what would otherwise have been a grievous injury, shall not, as a matter of policy, be heard to complain because of his own conduct.
That a recriminatory plea of desertion is not available in bar of adultery until and unless the statutory period has elapsed is clear. However, in this case, at the time of the filing of the petition the necessary two years from the date of the petitioner's desertion had expired. In the case of Von Bernuth v. Von Bernuth, 76 N. J. Eq. 487, 74 Atl. 700, 139 Am. St. Rep. 784, the complainant, on October 21, 1908, and before answer, filed an amended petition alleginga constructive desertion as of June 2, 1906. Substituted service was effected upon her husband, and, after several extensions of time to plead, his answer was filed on February 24, 1909, denying the allegations of the petition. Thereafter and on May 5, 1909, the defendant filed a cross-petition, as it was then called, praying divorce for the wife's desertion of him on March 19, 1907. As pointed out by Vice Chancellor Howell, the desertion of which the husband complained had not ripened into a cause of action at the time of the filing of the petition, but that it did mature thereafter and before the filing of the cross-petition. It is unnecessary to set out the reason for his determination, but it is sufficient to say that he answered in the affirmative his own question:
"Is it competent for a defendant in a divorce proceeding to set up in bar of the suit a matrimonial offense committed by the complaining party which accrued after the filing of the original petition?"
His decision was in favor of a decree for the husband under his cross-petition. There is no sound reason why there should be any distinction between that case where the original cause of action was desertion and this case where it was adultery. Both causes are recognized as grounds for divorce from the bond of matrimony; and I am even inclined to go further and say that it is my opinion that a statutory matrimonial offense is pleadable in bar although it would not entitle the defendant to more than a divorce from bed and board. The reason for my conclusions in this regard is fully set forth in Mr. Bishop's work just mentioned, in section 365 et seq.
I will advise a decree dismissing the petition.