Fallon v. Fallon

• Citation: 162 A. 406
• Decision Date: 17 October 1932
• Docket Number: No. 128.,128.
• Parties: FALLON v. FALLON.
• Court: United States State Supreme Court (New Jersey)

162 A. 406

FALLON

v. FALLON.

No. 128.

Court of Errors and Appeals of New Jersey.

Oct. 17, 1932.

Appeal from Court of Chancery.

Suit for separate maintenance by Ella Marie Fallon against John J. Fallon, Jr. From decree dismissing complainant's bill of complaint, plaintiff appeals.

Affirmed.

Advisory Master Herr filed the following opinion:

This is a suit for separate maintenance brought by the complainant, Ella Marie Fallon, against her husband John J. Fallon, Jr., under section 26 of the act entitled "An Act providing for divorces and for decrees of nullity of marriage, and for alimony and the maintenance of children" (P. L. 1907, p. 474 [2 Comp. St. 1910, p. 2038, § 26]), which provides that, "in case a husband, without any justifiable cause, shall abandon his wife or separate himself from her, and refuse or neglect to maintain and provide for her, it shall be lawful for the court of chancery to decree and order such suitable support and maintenance, to be paid and provided by the said husband for the wife and her children, or any of them, by that marriage, or to be made out of his property, and for such time as the nature of the case and circumstances of the parties render suitable and proper in the opinion of the court, and to compel the defendant to give reasonable security for such maintenance and allowance, and from time to time to make such further orders touching the same as shall be just and equitable. * * *"

The suit is based upon the alleged constructive abandonment of the wife by the husband. They were married on June 10, 1925. Two children were born to them, who are now in the mother's custody, to wit, Ruth, born March 21, 1926, and John J. Fallon, 3d, born May 2, 1927. After their marriage, they resided in an apartment at 700 Hudson street, Hoboken, until November 25, 1928, when the complainant left the home with the children and went to her parents' home in Jersey City, where she has ever since resided separate and apart from the defendant. She asserts that she was compelled to leave her husband's home "because of his cruel and inhuman treatment," and insists that she had come to the end of her endurance, that to have remained longer with her husband would have caused the ruin of her life and the lives of the children, that because of his cruel and inhuman treatment she was suffering from a nervous breakdown; in short, that her husband has been guilty of a constructive abandonment of her within the meaning of the statute.

The defendant in his answer denies all charges of cruelty, and insists that he is ready, anxious, and willing for his wife to return to him; that he has repeatedly told her so and assured her that he will support her and the children to the best of his ability if she will return to him; that she left him without justification, and remains away from him without just cause; and that he has made repeated and sincere overtures for her return, without success.

It is conceded that there has been a refusal by the defendant to maintain and provide for complainant and the children since November 24, 1928, until this court provided by its order, pendente lite, for such maintenance; the defendant from the day of the separation insisting that for him to voluntarily provide for her support elsewhere than with him would tend to encourage her in continuing the separation, and would amount to an admission that she was justified in leaving and remaining away from him.

For a wife to prevail in a suit of this nature, it is necessary for her to show, first, that her husband has abandoned her or separated himself from her without justification and, second, that he has refused or neglected to maintain and provide for her. Anshutz v. Anshutz, 16 N. J. Eq. 162; Weigand v. Weigand, 41 N. J. Eq. 202, 3 A. 699; Taylor v. Taylor, 73 N. J. Eq. 745, 70 A. 323; Pinkinson v. Pinkinson, 92 N. J. Eq. 669, 113 A. 143.

And, when the husband so deals with his wife that she is compelled to leave him because of his cruel treatment, their separation will be deemed, in view of this court, an abandonment by him. Maas v. Maas, 34 N, J. Eq. 113.

It is the duty of the wife to live with her husband at his home and to give him her services and society. From these obligations she is only relieved if she can show that the conduct of her husband has been such as will reasonably convince the court that her life or health are in danger or her life rendered one of such extreme discomfort and wretchedness as to incapacitate her to discharge the duties of a wife, or that the conduct of the husband, if continued, would have brought about these conditions. Taylor v. Taylor, 73 N. J. Eq. 745, 748, 70 A. 323; Pinkinson v. Pinkinson, 92 N. J. Eq. 669, 113 A. 143.

Extreme cruelty which will justify the separation of one spouse from the other is that degree of cruelty, either actually inflicted or reasonably feared, which endangers the life or health of the aggrieved party, or renders his or her life one of such extreme discomfort and wretchedness as to incapacitate him or her, physically or mentally, to discharge the marital duties. Smith v. Smith, 40 N. J. Eq. 566, 5 A. 109; Taylor v. Taylor, 73 N. J. Eq. 745, 70 A. 323; Pfender v. Pfender, 106 N. J. Eq. 373, 150 A. 832.

The misconduct relied on to justify the wife in leaving her husband must amount to a ground of divorce a mensa or a vinculo, and it is not a necessary ingredient in constructive desertion that the husband shall 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. Rogers v. Rogers, 81 N. J. Eq. 479, 86 A. 935, 46 L. R. A. (N. S.) 711; Danielly v. Danielly, 93 N. J. Eq. 556, 118 A. 335; Csanyi v. Csanyi, 93 N. J. Eq. 11, 115 A. 76; McVickar v. McVickar, 46 N. J. Eq. 490, 19 A. 249, 19 Am. St. Rep. 422; Skean v. Skean, 33 N. J. Eq. 148, 150; Starkey v. Starkey, 21 N. J. Eq. 135, 136; Suydam v. Suydam, 79 N. J. Eq. 144, 80 A. 1057.

In Sachse v. Sachse, 107 N. J. Eq. 41, 47, 151 A. 744, 746, the Court of Errors and Appeals said: "It is impossible to define, with accuracy, the exact meaning of the term 'extreme cruelty,' as used in the statute, which provides for an absolute divorce on that ground, but this court, in Doty v. Doty, 92 N. J. Eq. 660, 114 A. 546, has approved of the rule as stated by Vice Chancellor Van Fleet in Black v. Black, 30 N. J. Eq., at page 221, wherein he 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. Green (25 N. J. Eq.) 529; English v. English, 12 C. E. Green (27 N. J. Eq.) 585.'"

And in Cavileer v. Cavileer, 94 N. J. Eq. 160, 163, 119 A. 101, 103, the Court of Errors and Appeals said: "'Extreme cruelty,' as used in our Divorce Act, is such cruel conduct as endangers the safety of the person, or the health of the aggrieved party, either actually inflicted or reasonably apprehended. Smith v. Smith, 40 N. J. Eq. 566, 5 A. 109; Taylor v. Taylor, 73 N. J. Eq. 745, 70 A. 323."

See, also, Margarum v. Margarum, 57 N. J. Eq. 249, 41 A. 357; Arnaboldi v. Arnaboldi, 101 N. J. Eq. 126, 138 A. 116; Dummer v. Dummer (N. J. Err. & App.) 41 A. 149; Cavileer v. Cavileer, 94 N. J. Eq. 160, 119 A. 101; Doty v. Doty, 92 N. J. Eq. 660, 114 A. 546; Regan v. Regan, 100 N. J. Eq. 158, 135 A. 478.

Under these definitions, drunkenness and vile language, without more, do not constitute extreme cruelty. Bridge v. Bridge (N. J. Ch.) 93 A. 690.

Nor is a false charge of adultery extreme cruelty per se. To constitute extreme cruelty, such a false charge must be maliciously or wantonly made, and must be made under circumstances which in fact cause anguish and pain of the extreme nature contemplated by the definitions. Even then, if the accusation be made under stress of reasonable suspicion caused by the wife's conduct, it does not amount to extreme cruelty. Barton v. Barton, 97 N. J. Eq. 404, 128 A. 798; Hill v. Hill, 97 N. J. Eq. 237, 127 A. 584.

Constant quarreling does not in itself constitute extreme cruelty. Brinkerhoff v. Brinkerhoff, 106 N. J. Eq. 331, 150 A. 679.

The court must in each case look to the effect of the conduct complained of upon the health, mental and physical, of the wife, for it is an essential element of extreme cruelty that its effect upon the mind or body of the aggrieved spouse shall have been substantially deleterious, or that, if allowed to continue, it reasonably would have become so. Conduct which would imperil the health of a refined and delicate wife might be endured with comparative unconcern by one of a less sensitive nature. Close v. Close, 25 N. J. Eq. 526; Thomas v. Thomas, 87 N. J. Eq. 668, 101 A. 1055, 103 A. 675; Casey v. Casey, 83 N. J. Eq. 603, 93 A. 720.

And it may well be remarked at this point that if a wife, knowing the disposition of her husband, willfully persists in a course of conduct that aggravates or intensifies the situation of which she complains, she is not entitled to relief. Duvale v. Duvale (N. J. Ch.) 34 A. 888, affirmed 65 N. J. Eq. 771, 60 A. 1134; Casey v. Casey, 83 N. J. Eq. 603, 604, 93 A. 720.

Conduct by a husband toward his wife may be said to amount to extreme cruelty per se, because the law will presume from the nature of such conduct that it is malicious and intended to force a separation, and that its effect upon the wife is such as to imperil her life or health, or render her life one of such extreme discomfort and wretchedness as to incapacitate her to discharge the duties of a wife. An example of such extreme cruelty per se would be the...