Opinion
No. 50/567.
05-08-1922
STRICKLAND v. STRICKLAND (two cases).
Elwood C. Weeks, of Atlantic City, for Bertha Strickland. Joseph A. Corio, of Atlantic City, for Mark Strickland.
Suit for maintenance by Bertha Strickland against Mark Strickland, and suit for divorce by Mark Strickland against Bertha Strickland, in which the defendant filed a cross-action for divorce, were consolidated for hearing. Decree advised, denying relief sought in both suits for divorce, and awarding the wife separate maintenance.
Elwood C. Weeks, of Atlantic City, for Bertha Strickland.
Joseph A. Corio, of Atlantic City, for Mark Strickland.
LEAMING, V. C. On October 14, 1921, a bill for maintenance was filed by Bertha Strickland against her husband, Mark Strickland, based upon the charge that in June, 1918, defendant had abandoned her, and thereafter neglected to maintain or provide for her, and at the return of an order to show cause an order for alimony pendente life of $5 a week was ordered therein. Thereafter defendant filed an answer, denying the charges contained in the bill. November 17, 1921, Mark Strickland, the husband, filed a petition for divorce against his wife, based upon the charge of desertion by his wife in June, 1918. In the last-named suit the wife answered, denying the desertion, and set up by way of cross-petition a charge of constructive desertion on her husband's part, beginning in June, 1918, and also charging adultery with one Evelyn Ilarris in August and September, 1921.
The husband thereafter filed an answer to the cross-petition in the divorce suit, denying the charges of desertion and adultery therein made.
By stipulation a final hearing was had in the suit for maintenance and in the suit for divorce and cross-suit for divorce simultaneously, the stipulation being to the effect that the three cases should be considered as consolidated for the purpose of trial.
I think it clear that the evidence does not justify a decree of divorce in favor of the husband against his wife. The separation of the parties occurred under circumstances which disclose that at the very least the husband was not free from fault. Nor does it adequately appear that the separation can be said to have been against his will, or that he at any time made any appropriate effort to procure his wife's return to him. Indeed, no adequate corroboration of the husband's testimony of an obstinate desertion on the part of his wife can be found in the evidence.
Nor am I able to conclude that the wife is entitled to a divorce against her husband, either on the charge of constructive desertion or adultery. The wife's testimony discloses cruel treatment on the part of the husband, which, if accepted in its fullness, justified her in leaving her husband and fearing to return. Her testimony also discloses suggestive intimacy between her husband and Evelyn Harris. But her testimony touching extreme cruelty is without adequate corroboration, and the evidence is insufficient to justify a decree for adultery.
The result of the denial of a divorce to either of the parties is to leave the husband with all the common-law duties of a husband toward his wife. These duties include the duty of maintenance and support of the wife. It will therefore be necessary to make an order for support in favor of the complainant in the maintenance suit. She is at this time almost destitute, and is more or less crippled and unable to perform remunerative labor. The husband's average income is about $33 a week. This demands an order for $10 a week for the support of the wife.
A decree will be advised, denying the relief sought in both suits for divorce, and awarding an order for support in favor of the wife to the amount of $10 a week.