Opinion
06-15-1899
TRACEY v. TRACEY.
William M. Jamieson, for complainant. John A. Montgomery, for defendant.
(Syllabus by the Court.)
Action by Hugh Tracey against Mary Agnes Tracey for divorce. Judgment for defendant.
The parties in this case resided in Trenton, N. J., and were married in January, 1893, and shortly afterwards began living together at the residence of Mrs. Kelly, the wife's sister. In June, 1893, a quarrel took place between the complainant and Mr. Kelly, in whose house they lived. In consequence of this quarrel Kelly insisted that Tracey, the complainant, should leave his house. In August, 1893, a child of the marriage was born, and at this time the complainant returned to Kelly's house, and stayed with his wife for a few weeks. He then left as he states, because Kelly refused to permit him to stay longer. He claims to have frequently invited his wife, the defendant, to come and live with him, but alleges that she always refused, asserting that she would rather live with her sister, Mrs. Kelly. He admits that he has done little to support his wife or child, having given her but five dollars since he separated from her. He excuses himself for this on the ground that his wife's drinking habits have made her unfit to be trusted with money. The witness whom he calls to substantiate his allegation that he had invited his wife to live with him swears that he never authorized her to tell the wife he would furnish a home for her. This is quite a substantial incident, where the husband did not support his wife, and never had any place of residence or home to which she might go and cohabit with him. There is proof that in 1897 a child of the defendant was born, and of which the complainant was not the father. There is also proof and admission from the complainant himself that he has been convicted of fornication since the marriage.
William M. Jamieson, for complainant.
John A. Montgomery, for defendant.
GREY, V. C. (after stating the facts). The bill in this case prays a divorce a vinculo matrimonii upon the ground of desertion by the defendant wife. Though an answer denying the desertion is filed, the defendant presented no evidence, and resists the prayer of the complainant solely upon the proofs made on his part. The evidence shows undisputably that the parties resided and were married in this state, and have since resided here. They began their married life in the house of Mr. Kelly, the husband of the defendant's sister. Their first separation took place about May 1, 1893, at the end of athree-months residence at the house of Mr. Kelly. It appears to have been occasioned by a quarrel between Kelly and the complainant. Precisely what was the cause of the dispute is not shown, but the indications are that no board was paid. Kelly insisted that the complainant should leave his house; stating that he (Kelly) had supported the defendant before the complainant married her, and could continue to do so. There is no showing that the complainant, during his stay in Kelly's house, paid any board for either himself or his wife. He admits that he has contributed but five dollars to the support of their child. In narrating the quarrel, the complainant states it to have been between himself and Mr. and Mrs. Kelly, and makes no mention of his wife as a participant. Under Kelly's threat that he would "lick" the complainant if he did not go away, the complainant took his belongings and went away from Kelly's house that night, and he does not appear to have told his wife of his preparations to leave. The wife is not shown to have been an actor in any way. Shortly afterwards the complainant requested the defendant to come and live with him, and she refused to leave her sister's house. There is no proof that the complainant had provided any place for the defendant, who had at this time progressed nearly, if not quite, six months in pregnancy. The husband states that he had work at this time, but the character of the evidence as to the husband's providence and care for his wife does not satisfy me that her refusal to leave her sister's house was, under the circumstances, unjustified. The proofs show no quarrel between the husband and wife, no expression of ill feeling for any reason,—simply a refusal by the wife to leave the protection of her sister's house. A few months later (in August, 1803) the child was born, and the complainant, at the invitation of the defendant, came to Kelly's house, and remained for two weeks,—until Kelly sent him a message to leave. The complainant himself swears that there never was "any bad blood" between himself and his wife, except that she refused to live with him, saying she did not like to leave her sister's home. Their separation after the birth of the child had the same characteristics. That the unwillingness of the wife to leave her sister's home at these times was no indication of a purpose to desert her husband is conclusively shown by the husband's own testimony that, about four years before the time at which he was testifying, he had twice had marital intercourse with his wife. This must have been in August, 1894, a year after the birth of the child. So far as the refusals of the wife to leave her sister's house are proven with relation to any date, they are indicated to have been made before August, 1894, when marital intercourse was resumed, as stated. After that period, if any invitation was given by the husband to the wife to live with him, the evidence fails to show it with sufficient certainty to base any relief upon it. The husband swears he had not even seen his wife, to speak to her, for three years before August, 1898.
Where the living apart of the parties was without the procurement or fault of the wife, and is unexplained, or was probably occasioned by the failure of the husband to pay his board, and was not caused or accompanied by any ill feeling of the wife, and did not prevent marital intercourse, it cannot be held to be desertion on her part. The proof in this case that after the resumption of marital intercourse the wife has so refused to live with her husband that her conduct amounts to willful, continued, and obstinate desertion for the term of two years is entirely insufficient. The most that can be made of it is that they did not live in the same house, but a purpose on the part of the wife to abandon her husband, which continued and was obstinately adhered to for two years, is not proven. Living apart is one element of desertion, but it is not conclusive of the characteristics which are necessary to constitute the desertion prescribed by the statute. Bourquin v. Bourquin, 33 N. J. Eq. 7. This case is not one of difference between husband and wife as to the place of their residence, as was Hunt v. Hunt, 29 N. J. Eq. 96. There the husband had provided a home, to which the wife obstinately refused to come. In this case there is no such proof. Nor is there any sufficient evidence to fix upon the wife an intent to abandon her husband. It will appear, if the depositions of the witnesses other than the complainant himself are examined, that they either testify that the solicitations of the husband that his wife should live with him were made prior to August, 1891, when their marital relations were at least temporarily resumed, or they are so uncertain as to date that they are of no probative force. I think it entirely clear that, if the wife did refuse to live with her husband when she should have joined him, yet if she afterwards granted, and he accepted, his marital privileges, her refusals become of no significance as evidence of either continued or obstinate desertion on her part. It is as to these precedent refusals that the witnesses other than the husband testify. Proofs to establish these characteristic conditions of the desertion must be directed to a date subsequent to the time when marital intercourse was resumed, and in this the complainant's case fails. Furthermore, all the proof which goes to any extent to show desertion after August, 1894, when the complainant testified he was received by his wife, comes from the complainant himself, and is entirely unsupported by any other witness. A divorce will not be granted upon the uncorroborated testimony of the complainant. Tate v. Tate, 26 N. J. Eq. 56, and cases there cited; McShane v. McShane, 45 N. J. Eq. 341, 19 Atl. 465.
In taking the proofs, testimony was admitted to show that the defendant gave birth to a child in March, 1897, of which the complainant was not the father. Objection was made to the admission of this line of proof. An examination of the bill shows that the complaint made is for desertion only, and that no act of adultery of the defendant is averred, either as a basis of relief, or as related to or explanatory of the alleged desertion. Proof of adultery, even if sufficient to justify a divorce if applied for by a proper pleading for that alleged cause, does not show desertion as prescribed by the statute. Stiles v. Stiles, 52 N. J. Eq. 446, 29 Atl. 162. If the complainant has such sufficient cause for a divorce, he should assume the responsibility of its allegation and proof. The testimony should have been rejected. It has no probative force to show statutory desertion, and, for want of proper pleading, cannot be a basis for relief in this suit.
Some testimony was introduced tending to show dissipated and dirty habits on the part of the defendant. They do not, however, Indicate the existence of any of the elements of desertion which must be proven to support the relief sought.
There is another reason in this case why relief should not be granted to the complainant. It appears by the testimony given by himself, or offered in his behalf, in seeking his relief in this cause, that he has, since his marriage, committed an act or acts of fornication, of which he has been convicted. Such a default would have been a bar to the complainant's suit in divorce for desertion, if it had been properly pleaded. Reid v. Reid, 21 N. J. Eq. 331: Nels. Div. & Sep. § 429. But when condoned, and subsequently set up as a defense by proof only, without plea, was refused consideration. Jones v. Jones, 18 N. J. Eq. 33. All the cases, however, declare that if the complainant, in proving his case, discloses his own guilt, the court will refuse him relief, even if his misconduct be not pleaded against him. Id. 35; Nels. Div. & Sep. § 442; 2 Bish. Mar. & Div. § 408. The complainant cannot exhibit to the court his own breach of his marriage vows, and successfully ask for relief because of the defendant's failure in marital duty. He comes into court with unclean hands, and cannot rightfully ask its aid. In the case before me, the complainant's breach of his marriage vows appears in his own proofs, by his own oath. The bill should be dismissed.