Opinion
10-14-1904
PATTON v. PATTON.
Thomas S. Hall, for complainant.
Bill by Cora Patton against William G. Patton. Decree for defendant.
Thomas S. Hall, for complainant.
MAGIE, Ch. This is an undefended case, the defendant although served with process, having filed no answer to the complainant's bill. The usual order for proofs was made, and, the proofs coming in, a decree is asked in behalf of complainant.
Complainant's bill sets out her marriage with the defendant and the establishment of a matrimonial domicile in this state, which continued up to June 8, 1903, when the parties separated. It discloses that on that date the complainant and the defendant had entered into an agreement which was afterward put in proof, and is now before the court By that instrument the defendant among other things, agreed to permit his wife, the complainant, to live separate from him, and to pay her for the support and maintenance of herself and of the daughter of the marriage (the custody of whom was to be in the complainant) $50 per month for the period of complainant's natural life, or so long as she remained his wife. On her part, the complainant released and discharged the defendant, her husband, from all liability to her, other than that which was assumed by him in the contract, and from all "duties, liabilities and obligations of every kind whatsoever, which she, the said Cora Patton, might or could claim under or by virtue of the marriage relations between her and her said husband." The bill asserts, and the proofs show, that the defendant has not performed his contract to pay complainant all the sums agreed to be paid, and that there were large arrears due at the filing of the bill. But the bill does not seek for a decree for those unpaid sums upon the footing of the contract which could be done under the doctrine laid down in Aspinwall v. Aspinwall, 49 N. J. Eq. 302, 24 Atl. 926, and Buttlar v. Buttlar, 57 N. J. Eq. 645, 42 Atl. 755, 73 Am. St Rep. 648. Nor does the bill charge that the complainant has repudiated the contract on her part or made any demand for the resumption of the marital relation with her husband. The prayer is for alimony only.
In seeking a decree for alimony, counsel urge that the articles of separation are no bar to such a claim on the part of a wife, and place this upon the authority of Miller v. Miller, 1 N. J. Eq. 386. The doctrine was properly applied to that case. It therein appeared that the articles of separation under consideration made only a uominal provision for the wife's support and maintenance, and that she had sought the resumption of the marital relation and had been refused. Alimony, unless as incidental to divorce or other relief, can only be decreed in cases within the statute. The legislative provision on the subject is now contained in section 20 of the divorce act of 1902. Laws 1902, p. 508, c. 157. This case does not come within the statute, for, while there is shown a separation of the parties and the husband's neglect to maintain and provide for his wife, it is not shown that the separation was without justifiable cause. On the contrary, complainant shows that she agreed to the husband's separating himself from her, and she has never repudiated that agreement. If complainant had demanded of her husband a resumption of the marital relation, he would not have been justified in refusing. The agreement of separation could not be relied on by him for a denial of her rights. Upon such a demand being made and denied, the separation would cease to be justifiable. But that is not the case made by the bill and proofs.
It results that the decree asked for cannot be made.