Opinion
05-31-1904
COTTER v. COTTER.
George R. Beach, for petitioner.
Action for divorce by Minnie Cotter against James J. Cotter. On motion to confirm the master's report in favor of a decree of divorce. Denied.
George R. Beach, for petitioner.
MAGIE, Ch. Having doubts whether the proofs justify the master's report in favor of a decree of divorce, I requested the solicitor of petitioner to present his views, and he has been heard by me. The proofs have been again considered, and my conclusion is that the report should not be confirmed. The divorce is sought on the ground of a desertion, which occurred in the state of New York when both parties were residents there.
1. The proofs seem insufficient to show that the petitioner has acquired and maintained a residence in New Jersey animo manendi sufficient to give jurisdiction under our statute.
2. Petitioner's evidence seems to establish a willful and continuous desertion.
No rule is more inexorable than that which forbids the court to make a decree of divorce on the uncorroborated evidence of the party seeking it. There is some corroboration to the effect that the defendant left the small town in which he was living, leaving the petitioner there, and that he has not returned to her. But I cannot discover any corroborative evidence that his leaving petitioner was with the intent to desert her. Petitioner's evidence showed that there were persons who could testify to facts, and statements of defendant, that might disclose such an intent. They were not called as witnesses. Evidence since filed indicates that the omission to produce pertinent evidence of this sort occurred because one of the witnesses now lives in California, and the other witness could not be induced to come to New Jersey except at an expense which petitioner was unable to meet. This misfortune of the petitioner cannot, however, justify the relaxation of the rule, or the granting of a decree without corroborative proof of the material charge of willful desertion.