Opinion
12-27-1907
TOPFER v. TOPFER.
James A. Gordon, for complainant
Suit by Magdalina Martha Topfer against Henry William Topfer for divorce. Cause dismissed, unless complainant obtain leave to take additional testimony within the next 30 days.
James A. Gordon, for complainant
WALKER, V. C. This is a suit for divorce for desertion, and the learned master to whom the cause was referred reports that on November 30, 1902, the defendant willfully deserted the complainant, and at all times since that day to the present time he has willfully, continually, and obstinately deserted her. This is true if the complainant's testimony is to be believed, and I believe it; but, in my opinion, her testimony lacks that corroboration which is absolutely essential to enable a person to obtain a divorce in this state. Therefore I am unable to advise a decree of divorce in accordance with the recommendation of the master that it be granted.
The only witness for the complainant besides herself is her mother, Mrs. Mary E. Haug. She testifies that the defendant left the complainant on several occasions, and remained away for longer or shorter periods of time, but always returned. Speaking of the desertion which is relied upon for divorce in this cause, she says that the defendant went away again about five years ago, and has never come back; that she does not know where he is, or where he went, or what he has been doing, or any place to inquire about him, nor does her daughter, the complainant. She, the mother, also says she did not see him going away that time. He said nothing about going, and she has not heard of him since. She never saw nor heard any quarrel between him and her daughter, and never heard about any quarrel, and never had any quarrel with him herself. The fact of the marriage of the parties and of the complainant's residence is proved and corroborated, so is the continuity of the desertion, and its obstinacy is to be implied; but for want of any corroboration of any fact showing, or tending to show, willful desertion, the relief sought must be denied. Kline v. Kline (N. J. Ch.) 61 Atl. 160. Nor do I understand the doctrine in Kline v. Kline, to be departed from or overruled by Foote v. Foote (N. J. Err. & App.) 65 Atl. 205, which holds that corroboration is not confined to the testimony of witnesses alone, but may arise out of circumstances. In Foote v. Foote the Court of Errors and Appeals, citing McShane v. McShane, 45 N. J. Eq. 341, 19 Atl. 465, expressly says that it was held in that court in that case that a divorce would not be granted on the unsupported testimony of the petitioner as to the cause of the desertion, and that the same ruling has been had in many other cases in this state; that in that case (McShane) there was absolutely no testimony of any kind as to desertion save that of the petitioner; and that the master in his opinion, which was approved by the court (Errors and Appeals), adverts to the fact that the petitioner had destroyed the letters writtento him by his wife, which, in the absence of other proof, might have been of service to him in that suit. Further, in Foote v. Foote, the court says that it is not the testimony of other witnesses that is requisite as corroborative evidence; that if the circumstances of the case as shown by the expressions and conduct of the defendant, together with the letters of the parties, all corroborate the testimony of the complainant, the cause is complete. Now in the case under consideration there happen to be no letters, and there are no circumstances detailed by any witness other than the complainant that tend to corroborate her testimony on the vital point of the desertion. Her own testimony on that question, I may say, is barely sufficient to establish the willful desertion contemplated by our statute. Still, if she were substantially corroborated upon that point, I think willfulness would be made out. The history of the defendant's former desertions of the complainant are quite consistent with the theory that when he left her the last time he intended to return to her after he had gotten tired of roaming around. Only the extraordinary length of his last desertion, nearly four years and four months before the filing of the bill, and which was about twice as long as his longest previous desertion, would indicate his intention to make this desertion willful. Mere lapse of time, however, does not cause a desertion, without culpability in its inception, to ripen into one of willfulness.
If there were proof before the court that the defendant in this case has remained alive and free and able to return to the complainant, his intention might well be inferred. Alward v. Alward, 65 N. J. Eq. 28, 55 Atl. 996; Sweeney v. Sweeney, 62 N. J. Eq. 357, 50 Atl. 785. In this connection it may not be amiss to observe that the complainant testified that Mrs. Fitzsimmons, her next-door neighbor, told her about a year after the desertion had taken place, that is, about November, 1903, that she had seen the defendant pass the complainant's residence on the other side of the street, but saw him only once, and did not speak to him. This statement does not make it clear whether the defendant was seen passing the complainant's residence about the time Mrs. Fitzsimmons told her she saw him, or whether the event occurred long before Mrs. Fitzsimmons made it known to the complainant. Assuming that the defendant passed the complainant's house about the time the complainant received information of it, namely, about November, 1903, still more than the statutory period elapsed between that date and the filing of the bill which was on March 12, 1907, during which last-named period defendant has neither been seen, nor heard of, by anybody, so far as is disclosed by the testimony. Anyhow the statement of the complainant concerning the story told her by Mrs. Fitzsimmons is hearsay and not evidence. The same rules apply to the production of testimony in undefended divorce suits as in all other causes. Seeley v. Seeley, 64 N. J. Eq. 1, 53 Atl. 387; Adams v. Adams, 17 N. J. Eq. 324, 326, 327.
Unless the complainant is in a position to corroborate her case, and unless, further, she shall obtain leave of the court within the next 30 days to take additional testimony, a decree of dismissal will have to be made in accordance with the 165th rule of this court.