Opinion
09-02-1909
THOMAS v. THOMAS.
Richard Fitzherbert, for petitioner.
Divorce action by Susan Thomas, against Albert E. Thomas. Decree nisi advised.
Richard Fitzherbert, for petitioner.
WALKER, V. C. This is an ex parte divorce case. The theory advanced on behalf of the petitioner is that the desertion complained of was constructive; that is, that the petitioner was compelled to leave her husband because of his conduct, which must, in law, to entitle her to a divorce for that cause, be the same degree of cruelty as is necessary to support a decree a mensa et thoro. Hall v. Hall, 59 N. J. Eq. 402, 45 Atl. 690, affirmed 60 N. J. Eq. 469, 470, 40 Atl. 866; Sarfaty v. Sarfaty, 59 N. J. Eq. 193, 197, 45 Atl. 261.
In the first place, to obtain a divorce for constructive desertion, the facts relied upon to show the offense must be pleaded. They are not pleaded in this case. In the petition for divorce will be found these averments: "He deserted her * * * and your petitioner, who was soon to become a mother, was forced to return to her parents for comfort and support." That is simply an allegation of desertion which implies that the defendant left the petitioner. Then the pleader proceeds to aver that after a certain fact concerning the defendant's conduct became known to the petitioner "her said husband ill-treated her, and failed to provide her with the necessaries of life." This is neither a charge of desertion by the defendant nor a showing of facts which justify the petitioner in leaving him. It is a mere sweeping conclusion and valueless to the petitioner. What she terms as ill treatment might not be such at all, and what she terms the necessaries of life might comprehend comparative luxuries for aught that is shown. The petition then simply proceeds to charge desertion in the usual form, namely, "that for more than two years last past her said husband has willfully, continuedly, and obstinately deserted her, and during all that time has wholly neglected to make any provision for her support."
Said Vice Chancellor Reed in Smithkin v. Smithkin, 62 N. J. Eq. 161, at page 163, 49 Atl. 815, at page 816: "When a divorce is asked for on the ground of desertion, arising from the compelled absence of the petitioner by reason of the extreme cruelty of the respondent, the facts should be so charged in the bill or petition. The issue to be tried in such a case would be the fact and the degree of the respondent's cruelty, and the respondent is entitled to be informed of the issue to be tried, and to answer the acts charged." See, also, Foote v. Foote (N. J. Ch.) 61 Atl. 90, 93; Metzler v. Metzler (N. J. Ch.) 69 Atl. 965.
If, however, the testimony annexed to the master's report made it appear that the husband had been guilty of such extreme cruelty toward the wife, as would, under our decisions, justify her in leaving him, and, after the appropriate lapse of time, suing him for a divorce as for a desertion by him, the petitioner might take an order permitting the filing of an amended petition setting forth the facts relied on to establish the cruelty and justify her desertion in fact, and, upon the filing of such petition might have an order reciting the making of the master's report and the filing of the amended petition, and requiring the defendant to show cause at a future day why a decree should not be made against him in pursuance of the master's report under the authority of Metzler v. Metzler, supra, at page 966.
But the facts of this case do not show the husband to have been guilty of extreme cruelty. The petitioner testified that, about seven weeks after they were married, he was arrested on a charge of bastardy; that his sister came to their house and told her of the matter and requested her to go home with her because the defendant had said he thought it would be better for him if his wife should go there, and she went with her sister-in-law to her husband's mother's home and stayed there about seven weeks; that her husband was locked up on the charge for about a week, and then went to his mother's home; that she was badly treated at her mother-in-law's by her husband and his family with his sanction, so much so that she could not stand it and sent for her mother to come after her; that the day she went home to her mother her husband's sister pulled her wedding ring off her finger and tore up her marriage certificate, saying she did that at her husband's request, but that he was not present at the time. This statement concerning the declaration of the sister-in-law is mere hearsay and not legal evidence. Much other testimony of the same sort is to be found attached to the master's report. The same rules of evidence apply to testimony in undefended divorce suits as in other cases. Topfer v. Topfer (N. J. Ch.) 68 Atl. 1071.
Chancellor Zabriskie in Palmer v. Palmer, 22 N. J. Eq. 88, at page 89, remarked that he regretted that counsel and the master both saw fit to disregard the rule to take thetestimony in such manner that it might appear whether the facts sworn to were within the personal knowledge of the witnesses. It is still more regrettable that counsel and the master should have taken and returned testimony, which is mere hearsay, as was done in this case.
The parties went together again, and lived in a house for about six weeks and until March 25, 1905. She says that from the time of their marriage up to their separation her husband did not furnish any wearing apparel for her, and there were times during which there was hardly anything in the house to eat. She says that a week before the separation her husband left her alone one Saturday afternoon with only a loaf of bread in the house and did not return until the evening of the day following. She sent for her mother who came down and brought some necessaries for her. This was about two months before her child was born, and, being sick, she asked and pleaded with her husband to speak to a doctor and try to secure a nurse. He told her that he would act as doctor. She continued to get worse and, the following Friday, she again sent for her mother, who came and stayed all night. At this time they had scarcely anything to eat in the house. The petitioner told her mother in the presence of her husband about having requested him to speak to a doctor and get a nurse, whereupon he proposed to put her mother out of the house. The wife says there was nothing in the house to eat at the time, and, as she was in such a bad condition and there was no one to assist her, and as her husband would not furnish a nurse or a doctor, she was obliged to go to her mother's house, which she did. The defendant did not go to see the petitioner after she went home, neither has he written to her nor contributed one penny toward her support or that of their child which was born about two months afterwards. This is the whole story of the alleged cruelty. It is cruelty in fact of a certain degree, but it is not, as I understand it, extreme cruelty such as would entitle the petitioner to a divorce a mensa et thoro, under our law.
In Skean v. Skean, 33 N. J. Eq. 148, Vice Chancellor Van Fleet held that mere failure by a husband to furnish his wife with sufficient support is not a ground of divorce, nor will he be considered a deserter if she leaves him for that cause. He quotes from Chancellor Zabriskie in Palmer v. Palmer, ubi supra: "There is no rule that makes want of sufficient support by a husband, or total want of support a desertion of the wife. It is no cause for divorce, and the court cannot, by construction, convert it into a ground of divorce by calling it desertion."
The daughter's story of her short life with her husband, and the scanty larder he provided, and her leaving and going home are fully corroborated by her mother. One thing the mother says which the daughter does not, is that, on the occasion of the quarrel on the night she was there, the husband threatened to strike his wife. She further says that on the night before the daughter told her husband that she could not stand such abuse and treatment, and that he said she could go away if she wanted to; that he did not care. The testimony is taken in such a way that it does not appear whether the mother heard this statement herself or got it by hearsay from her daughter. Assuming that it is true in point of fact and that the husband did make the statement, it does not operate, in my judgment, to strengthen the petitioner's case. His conduct toward his wife, as already stated, amounted to less than extreme cruelty. While his failure to provide for her may have justified her in leaving him without making that a desertion on her part, it cannot operate to make the separation a constructive desertion on his part. Nor did his assertion that she might go away if she wanted to afford her an opportunity of going and thereby giving to his conduct a character which it did not bear.
Mrs. Tillie Johnson was sworn on the part of the petitioner and said that she occupied a house next door to the parties, and remembered when the petitioner went home with her mother. She says that during the time the parties lived beside her the petitioner came in her house frequently and told her that she was not getting used right by her husband, and that he was not furnishing her necessaries to live on, and on one or two occasions told her that they only had bread in the house to eat. Here is another instance of the hearsay evidence which was taken and returned by the master. This witness was also permitted to express her opinion on the facts, and said, among other things, that she did not think that the defendant used his wife as she ought to have been used. This of course is not evidence. One night she says the defendant went away, and the petitioner was afraid to stay in her house alone and came into the witness' house crying, and was given permission to stay all night. About eleven o'clock the witness' husband went out with a lantern and found the defendant lying on his piazza and spoke to him, but he made no reply. The petitioner then went out, she says, but does not say where she went. As a fact she went in her own house as she herself testified in a subsequent deposition. The wife testifies that her husband had been working all the time, and she did not know what he did with his money; that he never gave her a penny of his wages.
In her subsequent deposition the petitioner testified to a fact not mentioned in her original testimony, and I think I ought to advert to it to show that I have not overlooked it. She says that while they were living together the defendant one evening said he heard a noise outside the house and got the butcher knife and went outdoors but therewas nobody there, and he came back into the house with the knife in his hand and kept pointing it at the petitioner and then at himself. So close was he to the petitioner that he placed the knife against her. She was very much scared, and through the shock was ill for several days. She does not say that he coupled this singular conduct with any threat whatever, and, if he had any malignant intentions, they appear to be as much directed against himself as against her. At the conclusion of her original deposition the petitioner was asked to tell what caused the desertion, and she answered that the only reason she knew was that the defendant almost always after they were married talked to her and acted towards her as if he did not like her and wanted to get away from her. She did not think he was a drunkard, but that he was selfish, and she thought very miscellaneous in his affections, and that was all the reason she could give.
There is no corroboration in the case of the butcher knife incident, nor any testimony from witnesses other than the petitioner concerning acts of cruelty whereby it might be inferred that the defendant had been guilty of the butcher knife episode, and even if he were guilty, the incident standing alone, or in connection with other facts, does not amount to extreme cruelty. Quite often when a wife approaches confinement she either has her mother come to her house or goes to her mother's for the occasion. Such was the case in Skean v. Skean, ubi supra, in which Vice Chancellor Van Fleet held that mere failure by a husband to furnish his wife with sufficient support is not a ground for divorce, and in which case he refused a decree. The confinement of the petitioner in this case was two months off at the time she left her husband's home and went to her mother's, and a doctor and nurse were doubtless hardly required at that time. The master reports that the defendant constructively deserted the petitioner. With this view I am unable to concur. The testimony, in my judgment, at best for the petitioner makes the case one of doubt and difficulty, and to doubt is to deny.
This case, however, in my opinion, is like that of Foote v. Foote, ubi supra, and is one of actual and not constructive desertion. In the case just mentioned (Foote v. Foote) Judge Vroom, speaking for the Court of Errors and Appeals said in 65 Atl. at page 207: "The learned vice chancellor, in his conclusions filed in the court below, has treated this case as one of constructive desertion, and says that, although the husband and wife were separated, there was no willful and obstinate desertion committed by either. * * * But this cause is not one of constructive desertion." Su, in the case at bar, the desertion, in my judgment, is not constructive. What occurred was this: The defendant treated the petitioner with great indifference, and failed to make adequate provision for her support. She was within two months of her confinement, and her mother was at their house. The parties quarreled because the petitioner feeling badly the defendant would not get her a doctor and a nurse. During the husband's absence the wife left the house and went to her mother's. What subsequently occurred makes the defendant, in my judgment, an absolute deserter of his wife, and his desertion for more than the statutory period has been willful, continued, and obstinate. The facts are these: The husband was entirely indifferent toward his wife and cared not if she left him. After she had gone he went to Mrs. Johnson's house next door and informed her that his wife had gone and he said "leave her go," and seemed to be pleased that she had gone. About a week after the wife left home the defendant came with a man and moved their goods from the house. He said goodbye to Mrs. Johnson and informed her that he was going away either to Paterson or the West.
The petitioner has lived in Morris county ever since the separation, and it would appear that the defendant has also. He was personally served with process there. About two months after the separation occurred the wife was delivered of a child, now about four years old. The defendant has never visited his wife and child nor sent them any word nor any money. It was his duty to go to re-establish a home for her, and to support her and their child. He did neither. He has been recreant to every duty of a husband and father. He is now paying attention, and appears to be engaged, to another woman.
In the Foote Case after a separation which was assented to the defendant went West, but after a time returned to Elizabeth where his wife lived, but not to his wife, nor did he ever return to her, offer to resume marital relations with, or to provide for, her as in duty he was bound to do. Said Vroom, J., for the Court of Errors and Appeals in this case, at page 207 of 65 Atl: "This conduct is what constitutes the actual desertion of the complainant on the part of the defendant. When the intention to desert became fixed in the mind of the defendant, the complainant has been unable to say; but his actions, and the corroborative circumstances under which his actions took place, can leave no doubt that such a determination was reached long prior to the two years before the filing of the bill in this case." Now, I have no difficulty in finding that when the defendant went to his house and removed his goods after his wife had left, that he then intended, if he had not done so before, to live separate and apart from his wife, to never resume marital relations with her, or support her or the child about to be born to him—in other words, to desert her.
While the petition fails to properly charge constructive desertion, it does charge actualdesertion. The proofs warrant a decree for this latter cause. The defendant has no notice that the master has erred in his conclusion as to the character of the desertion, and is in no wise harmed by the error.
There is no impediment in the way of granting a decree nisi, and it will be advised.