Opinion
01-04-1910
PETERSON v. PETERSON.
Walter L. Hetfield, for petitioner.
Petition for divorce by Anna Peterson against Charles Peterson. Petition denied.
Walter L. Hetfield, for petitioner.
WALKER, V. C. This is an ex parte case for divorce. The cause alleged is desertion, and the master recommends a decree.
The petitioner swears that on July 12, 1892, while they were living in Orange in this state and keeping house there, her husband deserted her, and that she has never since seen the defendant nor heard from him. Three other witnesses were examined before the master, and their depositions are annexed to his report. They simply prove the residence of the petitioner in New Jersey, and that she has lived here alone. There is no proof in the case that the defendant since he left the petitioner has remained alive and free and able to return to her, from which desertion might be inferred. Alward v. Alward, 65 N. J. Eq. 28, 55 Atl. 996. See, also, Topfer v. Topfer, 68 Atl. 1071.
In cases where there is proof only of continued absence of a defendant a divorce may yet be granted if at the time he left he said any word or did any act, such as taking with him his clothing or belongings, from which the inference of an intent to desert could be drawn. When the defendant in this case left his wife, he started for his work after breakfast without saying he was going to desert her and without uttering an unkind word. Nothing unfriendly occurred at their parting, and the petitioner herself had no idea that it was to be a separation. After he had left her for his work she went out to a store to procure some supplies for the table, and when she returned she found one of the front windows open and that her husband's clothes had been taken from the house, she having locked the door when she went to the store, being in the habit of going there for supplies every morning, and her husband knew the time at which she left the house for that purpose. From these facts it may be inferred that the husband returned and took his clothes during his wife's absence that morning. I think this inference should he drawn, especially as he once before deserted the petitioner and remained away from her a short time. But these facts are unavailable to the petitioner, as the only evidence of them is to be found alone in her testimony.
In McShane v. McShane, 45 N. J. Eq. 341, 19 Atl. 465, it was held that a divorce for desertion will not be granted upon the unsupported testimony of the petitioner as to the causes of the alleged desertion. And in Hires v. Hires, 61 N. J. Eq. 491, 495, 48 Atl. 598, it was held that a divorce cannot be granted where any element in the proofs necessary to sustain the decree is wholly dependent upon the uncorroborated testimony of the complainant. And that corroboration, it appears, is not confined to witnesses alone, but may arise out of facts and circumstances. Foote v. Foote, 71 N. J. Eq. 273, 65 Atl. 205. But corroboration must be produced, either by the testimony of witnesses, or the showing of facts and circumstances from which the proper inference can be drawn.
No decree divorcing the parties to this suit can be granted upon the evidence returned with the master's report.