Doty v. Doty

• Citation: 114 A. 546
• Decision Date: 20 June 1921
• Docket Number: No. 54.,54.
• Parties: DOTY v. DOTY.
• Court: United States State Supreme Court (New Jersey)

114 A. 546

DOTY

v. DOTY.

No. 54.

Court of Errors and Appeals of New Jersey.

June 20, 1921.

Appeal from Court of Chancery.

Petition for divorce by Florence Doty against Elmer E. Doty. Decree of dismissal, and petitioner appeals. Decree reversed, and record remitted, with directions.

Robert Newton Crane, of Plainfield, for appellant.

KALISCH, J. The appeal in this cause presents the question whether the testimony taken at the hearing before the special master was sufficient to warrant a decree in the petitioner's favor upon a petition filed by her for a divorce from her husband, based upon the statutory ground of desertion. The advisory master, who reviewed the testimony taken and the findings thereon by the special master, thought it was not, and advised a dismissal of the petition, which was decreed by the court below accordingly.

For the appellant it is contended that the decree is erroneous, in that, under the evidence adduced and the settled law applicable thereto, a case of constructive desertion was established, which entitled the petitioner to the relief prayed for.

The petitioner left her husband. She asserts that she was compelled to leave him because of his cruel conduct toward her. In this she stands fully corroborated by other witnesses. What that cruel conduct must consist of, in order to justify a wife to leave her home, seems to us was well stated by Vice Chancellor Van Fleet, in Black v. Black, 30 N. J, Eq. at page 221, where that learned jurist said:

"To justify a divorce a mensa et thoro, actual physical violence need not be proved, but such conduct, by the husband, must be shown as will justify the court in believing that, if he is allowed to retain his power over his wife, and she is compelled to remain subject to him, her life or her health will be endangered, or that he will render her life one of such extreme discomfort and wretchedness as to incapacitate her to discharge the duties of a wife. Close v. Close, 10 C. E. Gr. 529; English v. English, 12 C. E. Gr. 585."

This legal rule was approved and applied by this court in Smith v. Smith, 40 N. J. Eq. 595, 5 Atl. 109, a case for divorce upon the ground of extreme cruelty.

The facts of the present case, as developed by the testimony, briefly stated, are: That the parties were married in December, 1909, and cohabited together until August 17, 1917, during which period a male child was born to them, who, at the time of the filing of the petition, was seven years of age....