Opinion
01-12-1923
SMITH v. SMITH.
Babcock & Champion, of Atlantic City, for petitioner.
Petition for divorce by Elisba I. Smith against Clara Smith. On exceptions to master's report declining to recommend decree. Exceptions not sustained.
Babcock & Champion, of Atlantic City, for petitioner.
INGERSOLL, V. C. The master declined to recommend a decree, upon the ground that
"the husband had failed to make a reasonable effort to have the wife return to him."
He further stated that
"In this case the real effort seems to be to obtain a divorce on the ground of desertion, while proving a case of adultery."
The testimony of the petitioner is to the effect: That his wife left him in October, 1015. She had previously deserted him on two separate occasions, voluntarily returning each time, without request on his part That when she left him in 1915, she went to the house of a mutual friend, Mrs. Doughty; that he does not know where she went from there. That he never asked her to return to him, and that she is living on Massachusetts avenue, in Atlantic City. He thinks she is living with one Mike McCullough. That he knew she went to Mrs. Doughty's; that he did not go to see her; made no effort to get her to return; that he had been told that "she had been with this man before—before that I was sick and in the hospital, and he was at my house while I was in the hospital." That since her return he had "passed her on the street, time after time, but we never spoke." The only specific testimony given by him concerning knowledge of misconduct on her part was in response to the question:
"How do you know that in October of 1915, after she left you, that she took up her residence with some other man? Did you see them together?"
He replied;
"I didn't see them together, but my wife went to Mrs. Doughty's, and she told me."
Mrs. Doughty testified
That the defendant left him before October, 1915, "and then she returned, and this last time she left completely, and she said she never would return to him"; that during the "following summer, 1916, she came down to my place. She said she would never go back to him, that she was satisfied with this man, and she would never return to him." "She told me lots of times that she would never go back."
The only testimony given by her concerning Smith's knowledge of the condition of Mrs. Smith's mind concerning him was in response to the question:
"And after Mrs. Smith left did you talk to Mr. Smith about the matter?"
She replied:
"Yes; I have spoken to him, and I told him what she had said; that she would never go back to him."
The time of this conversation is not given; but from a reading of the testimony it seems to have been after the return of the defendant to Atlantic City in 1916.
The wife had previously left her husband, and of her own volition, without any act on his part, had returned to him. When she left in 1915, she went to the house of a mutual friend, of which he had knowledge.
It has been held, "If the leaving was willful, that he was under no obligation to seek her return" (Klein v. Klein [N. J. Ch.] 110 Atl. 570), particularly "when it is clear that any effort in that direction by the husband will be unavailing to terminate the desertion" (Marsh v. Marsh, 86 N. J. Eq. 419, 99 Atl. 409), and, "in order to establish desertion justifying a divorce, a husband need seek his wife's return only when there are reasonable chances of success" (Fry v. Fry [N. J. Ch.] 100 Atl. 839).
Does the present case come within the rules so laid down?
In Klein v. Klein, the petitioner made a number of efforts, both personally and by representatives, to have his wife return.
In Marsh v. Marsh, the court said:
"It [referring to the evidence] demonstrates to our satisfaction the utter futility of any attempted reconciliation by him."
In Fry v. Fry, the wife several times refused to communicate with or return to her husband. The Vice Chancellor said:
"There is nothing in the evidence which indicates that the husband was in any wise responsible for the separation or that he acquiesced therein."
It is quite clear that the desertion was not obstinate; that is, it was not against the will of the petitioner. An examination of the very meager testimony shows that the husband on two previous occasions, when the defendant had deserted him, made no effort to have her return, although she did so voluntarily; that upon the occasion upon which the action is founded, although he knew the defendant was at the home of a mutual friend, he made no efforts to effect a reconcilation. His present efforts to avoid the necessity of having made advances to have his wife return, by endeavoring to show that his wife was living with another man, cannot avail him, as according to the testimony his knowledge of this fact was not obtained for months after her desertion. No other construction can be given to the testimony, than that he acquiesced in the desertion for many years, even after he had discovered or been informed of the fact that she was living with another man. A husband cannot acquiesce in the desertion by his wife for many years (seven in this case), and succeed in obtaining a divorce upon such desertion and excusing himself from the necessity of seeking reconciliation by charging adultery on the part of the wife, knowledge of which came to him months after such desertion. The fact that desertion is charged, instead of adultery, suggests the possibility that such charge might not be defended, while one of adultery might not be permitted without challenge.
The exceptions will not be sustained.