Opinion
Submitted May 29th, 1931.
Decided October 19th, 1931.
1. The right of the husband to choose the marital domicile is unquestionable and his demand, under the circumstances of this case were not unreasonable. Held, the desertion was that of the complaining wife.
2. Even were the desertion that of the defendant husband, his subsequent advances, sincere and bona fide, and the complainant's refusal to submit to those advances, clearly make her the deserter in the final analysis.
3. Condonation is an affirmative defense and the burden of proving it is on the one asserting it.
On appeal from a decree of the court of chancery advised by Vice-Chancellor Berry, who filed the following opinion:
"The bill is for separate maintenance on the ground of desertion of complainant by defendant on September 24th, 1925, and there is a counter-claim by the defendant for divorce on the ground of his desertion by the complainant on the same date. It would serve no useful purpose to review the evidence in detail. Suffice it to say that in my judgment, under the circumstances of this case, the desertion charged by both parties was that of the complaining wife. The right of the husband to choose the marital domicile is unquestionable and under the circumstances of this case his demands were not, in my judgment, unreasonable. Assuming, for argument's sake, however, that the desertion was that of the defendant husband, his subsequent advances, sincere and bona fide, as I believe they were, and complainant's refusal to submit to those advances, clearly make her the deserter in the final analysis. And even assuming that his original demand that his wife move to Mulberry street was unreasonable and unwarranted, his later demands on the occasion of his repeated attempts at a reconciliation cannot be the subject of criticism either by the complainant or by this court.
"As to the complainant's defense of condonation, it was not originally pleaded, was plainly an afterthought, and is not supported by satisfactory or convincing evidence. It is an affirmative defense and the burden of proving it is on the one who asserts it. This burden has not been sustained by the complainant.
"I will advise a decree dismissing the bill of complaint and awarding a divorce to the defendant on his counter-claim on the ground of desertion."
Messrs. Lum, Tamblyn Colyer, for the appellant.
Messrs. Leber Ruback, for the respondent.
The decree appealed from will be affirmed, for the reasons stated in the opinion filed by Vice-Chancellor Berry.
For affirmance — THE CHIEF-JUSUTICE, TRENCHARD, PARKER, CAMPBELL, LLOYD, CASE, BODINE, DALY, DONGES, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, JJ. 14.
For reversal — None.