Foote v. Foote

• Decision Date: 23 June 1905
• Citation: 61 A. 90
• Parties: FOOTE v. FOOTE.
• Court: New Jersey Court of Chancery

61 A. 90

FOOTE

v. FOOTE.

Court of Chancery of New Jersey.

June 23, 1905.

Bill for divorce by Ada H. Foote against Henry H. Foote. Dismissed.

Cortlandt & Wayne Parker, for complainant. William P. Toler, for defendant

STEVENSON, V. C. 1. While the defendant filed an answer denying the desertion charged against him, and also a cross-bill praying for a divorce on the ground of an alleged desertion of him committed by the complainant, he offered no evidence to sustain either his answer or his crossbill. His counsel, however, cross-examined the two witnesses for the complainant. The complainant's whole case rests upon her own deposition, the deposition of her brother Mr. James S. Henderson, and the letters from the defendant which were admitted or proved. The testimony for the complainant, if the same could be deemed sufficient in amount, does not, in my opinion, exhibit a case of willful, continued, and obstinate desertion on the part of the defendant. The couple were married October 12, 1886. In June, 1891, they broke up housekeeping, and the complainant and her child went to her mother's house, in Elizabeth, N. J., to live, while the defendant went to reside with his mother, in the same city. The separation thus commenced has continued without break until the hearing of the cause. The complainant's bill was filed August 6, 1903, 12 years after the commencement of the separation. After the separation had continued about a year, the defendant, with the knowledge and consent of the complainant, went to Laredo, Tex., to fill the position of manager of an electric light company. The complainant admits that this business arrangement of her husband was not against her will, and that she contemplated joining her husband and living with him again in Texas. The defendant evidently made a failure of his Texas experiment, and in September, 1893, he returned from Texas, and again began to live with his mother, in Elizabeth. For the 10 years preceding the commencement of this suit these parties have been residing on the same street in Elizabeth, within two blocks of each other. The testimony shows that the original separation, in 1891, was not due to any intentional cruelty or ill treatment on the part of the defendant. The resources of the little family gave out. The husband had recently lost a good position in the employ of a firm of bankers in New York City, where he had been earning $2,000 a year. It was necessary to mortgage the wife's property to pay accrued household expenses. The wife, apparently having a small income of her own, took her child and went to live with her mother, while the husband, in his poverty and misfortune, found refuge in his parent's house. The complainant's testimony, although, perhaps, avoiding a complete disclosure of all that she knew on the subject, indicates, and other evidence, I think, warrants the inference, that the loss of the defendant's position in New York and his failure to support his family were due to habits of intoxication which he had contracted. The husband and wife apparently never quarreled. After the separation had endured for a year, I think it is plain that this unfortunate and erring man, probably with the aid of friends, made an effort to make a fresh start in a new place, and accordingly went to Texas and engaged in the business above mentioned in a comparatively small town. The complainant testified that when the defendant left for Texas he was in good spirits, and that she anticipated that he would succeed, and that she would join him there. A series of affectionate letters were written by the defendant to the complainant during the first months of his stay in Texas, and then the correspondence ceases. The reasons of the failure of the defendant's experiment in Texas we are left to surmise. After his return in 1893 to his mother's house, in Elizabeth, a number of interviews took place between himself and his wife, and some communications passed between them. These interviews and communications seem to have ceased about the year 1897. The complainant's brother testified that at different times, and particularly during the four or five years preceding his (the brother's) examination as a witness in this case, he had seen the defendant intoxicated on the street. Both counsel, in argument, refer to the significant fact indicated, if not proved, by the testimony, that the defendant had recently taken the "Keeley Cure" at White Plains, N. Y. The defendant's affidavit of noncollusion annexed to his crossbill was taken before a notary public at White Plains, N. Y., on January 14, 1904.

It is hardly necessary to say that habitual drunkenness is not a cause of absolute divorce in New Jersey, even when the effect of such drunkenness is to justify the wife in separating herself from her husband. Nor is failure to support a wife, resulting from habitual drunkenness, a cause of divorce in this state. The doctrine of constructive desertion has not been extended so as to reach these classes of cases, which in other states are recognized as proper ones to call for the remedy of divorce. The failure of the husband to support the wife, growing out of his habitual drunkenness, may justify the wife in leaving him, and prevent the separation so caused from being charged against her as a willful, continued, and obstinate desertion, but it does not follow that in such a case the husband is guilty of such desertion. In all the long story of separation which the complainant tells, and in all these letters to her from the defendant, I fail to find any indication that the defendant intentionally separated himself from his wife, or intentionally produced the conditions which compelled such separation. The defendant appears to have loved his wife. I do not think that the proofs show that he ever addressed a word to her, except in kindness. He fully recognized that he had grossly failed in the discharge of his duty to his wife, and that he stood in need of her forgiveness. Although the complainant had some means, she seems to have preferred not to share with her husband the discomfort and misery of a drunkard's home. As between such a home and a home with her mother, she made a very natural choice. Although the husband and wife were separated, in my judgment there was no willful and obstinate desertion committed by either. When the husband endeavored to make a new start and went to Texas, both husband and wife were planning that when he had succeeded in his new life of industry and sobriety they would live together again in the husband's new and distant home. There is no suggestion that the husband did not embark in this Texas enterprise in absolute good faith, and that the six or eight affectionate letters which he wrote during the first two months of his stay in Texas do not make a truthful disclosure of his mind and feelings towards his absent wife. No reason for the sudden termination of the husband's letters is suggested by the testimony, except the same reason which indirectly caused the original separation in 1891. That same cause of separation and estrangement continued to operate after the husband's return to Elizabeth in 1893, and presumably kept the couple apart for the 10 years which followed, and which ended with the husband in the "Keeley Cure" at White Plains. In Laing v. Laing, 21 N. J. Eq. 218, Chancellor Zabriskie, in defining "constructive desertion," includes only cases in which "the husband treats his wife with such cruelty or violence that she is obliged to leave him for safety or to avoid personal injury." "But," the learned chancellor adds (page 249), "if she leaves him because he is intemperate, improvident, fails to support her, or because his bad temper or intemperance makes her home disagreeable, this is not a desertion on his part. Habitual drunkenness is not, in this state, a ground of divorce. It would become such, substantially, if the doctrine would be established that a wife might leave her husband for it, and then have a divorce on the ground that he deserted her." In Palmer v. Palmer, 22 N. J. Eq. 88, the same chancellor formulates a similar definition of "constructive desertion," but admits that there may be cases "where a willful and malicious refusal by a husband to permit a wife who is discharging her own duties to share with him such means of support as he may have, may be held to be an expulsion from his house, and constitute a desertion." Skean v. Skean, 33 N. J. Eq. 148; McVickar v. McVickar, 46 N. J. Eq. 490, 19 Atl. 249, 19 Am. St Rep. 422; Lister v. Lister, 65 N. J. Eq. 110, 55 Atl. 1093. The plain distinction between a willful withholding of support by the husband from the wife, the necessary effect of which is to compel her to seek support away from him, and the habitual drunkenness of the husband, which renders him unable to furnish support to his wife, and thus becomes the indirect cause of her separation from him, prevents, I think, the definition of "constructive desertion" from being extended so as to make habitual drunkenness leading to nonsupport practically a cause of divorce under our statute.

It may be argued that where the wife is wholly dependent for support upon the earnings of the husband, and the husband allows himself to become an habitual drunkard, so as to deprive him of his power to earn a sufficient support for himself and wife, he must be presumed to intend the natural consequence of his conduct, which is the compulsory separation of his wife from him. It may be claimed that in such a case it is not the drunkenness of the husband which is the cause of divorce, but the constructive desertion which results from such drunkenness. To extend the doctrine of constructive desertion to such a case, viz., where the wife has no means, and the husband's only means of supporting his wife...