Summary
In Gunther v. Gunther (N.J. Ch.), 57 A. 1015, it is held, as stated in the syllabus, that: "A divorce on the ground of desertion cannot be had, the only corroboration of complainant's testimony of a demand that defendant come and live with him where he had moved and her refusal being the testimony of a witness that at a time less than two years before the filing of the bill he heard complainant ask her why she would not come and live there, and that she answered no."
Summary of this case from Kenniston v. KennistonOpinion
05-10-1904
GUNTHER v. GUNTHER.
J. P. & W. H. Osborne and James R. Fancher, for exceptant.
Suit by Charles V. V. Gunther against Helen B. Gunther for divorce. Heard on complainant's exceptions to the master's report. Exceptions overruled.
J. P. & W. H. Osborne and James R. Fancher, for exceptant.
MAGIE, Ch. I have carefully examined the evidence returned by the master with hisreport, and I am constrained to approve his conclusion that it does not satisfactorily establish the desertion complained of. The bill charges a willful, obstinate, and continued desertion from the 24th day of December, 1900. Previous to that date the parties had been residents of New York state. On that day the complainant had moved to an apartment in Jersey City, to which he had sent furniture proper to fit it as a residence for himself and his wife. The defendant had previously accompanied the complainant to Jersey City, and had aided in the selection of the apartment. It appears by independent testimony that she counseled and advised the removal from New York to New Jersey, yet it is clear that she did not move with him to the selected apartment, nor did she continuously occupy it with him, though there seems proof that she did spend one night with him there. It is also clear that she did not live with him at other places in New Jersey to which he removed from time to time. It is undoubtedly true that complainant had a right to change his place of residence, and to require his wife to accompany him to the changed residence. Under the circumstances proved, his request or demand that his wife should so accompany him, and her causeless or unreasonable refusal and her remaining away from him and his place of residence would show her intent to desert him. But I find no proof that the complainant requested or required the defendant to come to New Jersey, or to take up her residence with him here, other than the statement of the complainant himself. No doctrine is better settled in this state than that a divorce will not be decreed on the uncorroborated testimony of the complainant party. There is evidence of dissensions between the parties, and that declarations indicative of regret at her marriage were made by defendant, but none sufficient to indicate that, in response to complainant's request or demand upon her for the performance of her marital duty to remove to his place of residence, she had refused. The only evidence that I can discover bearing upon such a request and refusal occurs in the testimony of a witness named Taulman. He testifies that he overheard part of a conversation between complainant and a woman, who, the witness says, the complainant afterward told him was his wife. This conversation occurred on the porch of the house in which the apartment occupied by complainant was. His testimony is that the complainant asked the woman why she would not stay there and live there, and that she answered "No." The date of this conversation is not fixed, but it was undoubtedly some time after December, 1900, less than two years before the bill was filed, which was on January 6, 1903. It is plain that, if it is assumed that this woman was the defendant, the conversation does not show any request or demand by complainant at a previous date. Such reply does not necessarily indicate any refusal before January 6, 1901. Both must be proved to establish the desertion for the statutory period.
The result is that the exceptions must be overruled, the master's report confirmed, and the bill dismissed.