McVlckar v. McVlckar

• Decision Date: 21 February 1890
• Citation: 46 N.J.E. 490,19 A. 249
• Parties: McVlCKAR v. McVlCKAR.
• Court: New Jersey Court of Chancery

19 A. 249

46 N.J.E. 490

McVlCKAR

v. McVlCKAR.

Court of Chancery of New Jersey.

Feb. 21, 1890.

(Syllabus by the Court.)

Petition for divorce by Matilda McVickar against John McVickar.

Blair & Grouse and Mr. Hodge, for petitioner. P. Woodruff, for defendant.

PITNEY, V. C. Petitioner prays to be divorced from the bonds of matrimony, on the ground of desertion by her husband, the defendant, which she alleges to have occurred in 1868. It is admitted that since that date the parties have lived separately, and the question is as to the character of the separation. The parties were married in May, 1862, at Ballymena, County Antrim, Ireland, where the parents of both resided. The petitioner was then barely 16 years old, the defendant about 30. Her father and brothers were well to do people, engaged in trade at Ballymena, and, as I infer, also at Belfast. Defendant was engaged in business as a linen finisher at Drumona, a village about five miles from Ballymena. They kept house at Drumona from their marriage until March, 1868. The defendant had shortly before that date failed in business, and was penniless. Petitioner's father died in 1863. In the spring of 1868 the friends of the parties on both sides united in making up a purse to send them to New York, and give defendant a chance to make a fresh start there. They arrived in New York in the spring of 1868, with about $1,000 in money. By September they were again penniless. Petitioner borrowed of a Mr. Best, in New York, money enough to carry both back to Ireland. They reached Liverpool in September, 1868. Petitioner took the night boat to Belfast, gave her husband the little money which remained after paying her fare, and left him at the wharf in Liverpool, since which time they never met until the hearing of the cause. Petitioner went at once to live with her brother James Morton, at Ballymena, and a few days or weeks afterwards defendant followed her to Ireland, but did not see her. He remained in Ireland, and in the same neighborhood, for about two years, when he returned to New York. He lived in New York a few years, and then went to Montclair, or rather Caldwell, where he has lived for some 15 years. Petitioner spent several months with her brother and other friends in Ireland, England, and Scotland, and then went to France, and afterwards to Geneva, Switzerland, where she has for many years kept a school for young ladies. The foregoing is an outline of the married lives of the parties; and the question is whether the causes and circumstances of the separation are such as to$$$

make the defendant guilty of "willful, continued, and obstinate desertion for the period of three years" or more.

The contention of the petitioner is that she was compelled to leave her husband, and to live separate from him, by his utter and complete neglect to provide for her, and his persistent and long continued cruel treatment of her, by which her existence was rendered extremely miserable, and her life actually endangered. That such treatment of a wife by a husband will amount to desertion on his part is well settled in New Jersey. Chancellor ZABRISKIE, in Starkey v. Starkey, 21 N. J. Eq. 136, says: "In all cases where a husband either actually drives his wife from himself and his house, or by his cruel and abusive treatment compels her to leave it for safety or comfort, it is an abandonment and separation by him." And again, in Laing v. Laing, 21 N. J. Eq. 249, he says: "It is a recognized principle that when a husband treats his wife with such cruelty or violence that she is obliged to leave him for safety, or to avoid personal injury, this compulsory flight amounts to a desertion by him; and if he does not seek his wife, and try to persuade her to return with promises of amendment, that such absence, if continued for the requisite time, is a willful and obstinate desertion on his part." And, further on: "To convert a leaving by the wife into a desertion by the husband, she must go away for her own safety, and to protect herself from his violence." This language of Chancellor ZABRISKIE is repeated and adopted by Chancellor RUNYON in Sandford v. Sandford, 32 N. J. Eq. 421. And Vice-Chancellor VAN FLEET, in Skean v. Skean, 33 N. J. Eq. 151, says: "The husband may drive his wife away, or he may treat her so brutally as to compel her to flee for safety, or his conduct may be so cruel and malignant as to show that he means to force her away. If a wife, for either of these causes, separates herself from her husband, and he allows her to remain away for the statutory period without professing sorrow for his violations of conjugal duty, and promising to amend his conduct, and asking her to return, he, in the eye of the law, is the deserter, and she has a right to ask for a dissolution of the marriage tie." And again, in Weigand v. Weigand, 41 N. J. Eq. 208, 3 Atl. Rep. 699, he says: "A husband is guilty of abandonment when he compels his wife, by cruel and abusive treatment, to leave him. * * * If, in consequence of his conduct, she is compelled to leave his house, either to preserve her honor and self-respect, or to secure safety, he is the cause of the separation, and must be adjudged to be the wrong doer." And see Marker v. Marker, 11 N. J. Eq, 256. It is not, in my judgment, a necessary ingredient in this canon that the husband should entertain, in connection with his acts of cruelty, any settled purpose to drive his wife from him. It is enough if such is the natural consequence of his acts. Nor is the rule so laid down open to the criticism that it is in effect giving the wife a remedy against her husband for extreme cruelty greater than the statute authorizes, viz., divorce a vinculo matrimonii instead of a mensa et thoro. By the twentieth section of the divorce act, if the husband deserts his wife, she may sue him at once for maintenance and support, while, if she waits three years, and his desertion continues, she may procure an absolute divorce from him. Here is clearly something like a choice of remedies on the part of the wife. A remedy by suit for maintenance may be, and often is, of no value to her, owing to her husband's worthlessness, and hence she may accept the situation; and if her husband's conduct amounts to desertion, and is continued for the statutory period, there is no more reason in the one case than the other why the wife should not have the higher remedy of an absolute divorce.

Bearing the canon above cited in mind, I will proceed to examine the testimony in this case. There is very little conflict in it. The husband did indeed deny that he had ever consciously ill-treated his wife, but close observation of the parties while on the stand satisfies me that she is reliable in her statement. Her story is as follows: From the start her husband was a brutal drunkard, and so continued during the whole period of their cohabitation. She had heard before she married him that he had been drunk on one or two occasions, but his sister denied it, and declared that he was not at all dissipated in his habits. Petitioner was a mere child, without sufficient prudence to make close inquiry; and I do not think she can or ought to be placed in the position of one who knowingly and voluntarily marries a depraved or dissolute spouse. In addition to his disposition to drink, he appears to have had a brutal and unfeeling temperament, which was aggravated by frequent intoxication so that he habitually kicked and beat his wife, sometimes using a cane or fire shovel or poker. When he did this, he was sometimes drunk and sometimes sober, but more frequently drunk. She declares that she was frequently seriously bruised, and that she bears the marks of his violence to this day. On one occasion, in a boarding-house in New York, in very warm weather, he locked himself and her in their room, which was at the top of the house, hid the key in his night-dress, under his arm, set all the gas-jets burning, and laid down and went to sleep, or pretended to do so. The wife remained thus incarcerated for a whole night and a part of the day, suffering intensely from heat and mosquitoes. Finally, watching the opportunity when she thought her husband was asleep, she extracted the key quietly from its place of concealment, and left the room. Her husband observed her movement, and, following her, seized her as she turned to descend the stairs, and lifted her by one of her arms up over the banister, in what appears to have been an attempt to drag her back to their room. She screamed,—for the first time, as she says, throughout all her sufferings,—and some of the boarders came and rescued her. On this occasion she says he was sober. She denies that she was cross or quarrelsome, or that she ever at all, or in any wise or degree, provoked or scolded her husband, or was in the least degree responsible for his brutal conduct towards her; and in this respect she is not only not contradicted, but positively corroborated, by him. She declares that she did all she could to hide her husband's shame, and her own sufferings, and made unceasing efforts to wean him from his brutal habits. He frankly admits the truth of her statement in this respect. The accuracy of her picture of her married life, with all its hideous horror, is strongly corroborated by the evidence of several New York business men, who testified as to his habits and conduct for one or two years after he returned to New York, in 1870. These gentlemen, who were then young men, were brought into daily contact with defendant during the period just mentioned. They show him to be not only a drunkard, but possessed of a temper which exhibited itself in acts of violence towards those who were brought into contact with him. Upon the least provocation he would throw a ruler, paper-weight, inkstand, or other object at the head of the offender.

Upon a careful review of all the evidence bearing on the subject, I am satisfied that the petitioner was...