Glenn v. Glenn.
| Decision Date | 03 September 1948 |
| Docket Number | No. 210.,210. |
| Citation | 61 A.2d 41 |
| Parties | GLENN v. GLENN. |
| Court | New Jersey Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Chancery Court.
Action by Frank Glenn against Florence E. Glenn for divorce, wherein the defendant filed a counterclaim. From decree in favor of plaintiff and dismissing counterclaim, the defendant appeals.
Decree reversed with respect to plaintiff's petition and affirmed as to defendant's counterclaim.
George W. C. McCarter and Frederick C. Vonhof, both of Newark, for defendant-appellant.
Lloyd L. Schroeder, of Hackensack, for petitioner-respondent.
This is a matrimonial action. The husband filed a petition for divorce for desertion and the wife counterclaimed on the same ground. The Advisory Master advised a decree nisi in favor of the husband and dismissed the counterclaim of the wife. The wife appeals and challenges the decree with respect to both the petition and counterclaim.
We are of the view that the decree should be reversed with respect to the husband's petition and affirmed as to wife's counterclaim.
The parties were married in 1936. On October 11, 1939, they entered into a separation agreement. They were reunited in March 1940, and remained together until March 16, 1942, when a final separation occurred. A new separation agreement was executed on October 5, 1942.
The husband conceded that the final separation was by mutual agreement, but contended that his wife deserted him in March, 1944. He testified that he saw her on but one occasion prior to the institution of the suit, when he chanced to meet her in a subway station in March or April of 1943. He said that he then urged her to return. She denied the entire occurrence. His testimony in this regard is not persuasive. The essence of his case revolved about four letters which he claimed to have written to his wife seeking a reconciliation. In his petition he fixed the time of desertion as March 5, 1944. The last letter was dated February 28, 1944, and was dispatched by registered mail.
The wife denied receipt of any letter other than the letter on February 28, 1944. The wife testified that she ignored the letter because she regarded the overture as insincere. We think it was insincere. The testimony persuasively shows that in January, 1944, the husband called upon the wife's New York counsel and suggested a divorce. The attorney conferred with the wife and advised the husband by letter dated January 21, 1944, that she was agreeable to a divorce if the payment of alimony were secured and if she were not assigned the role of defendant. The husband admitted seeing his wife's attorney, admitted receipt of the letter, but denied that the subject of divorce was discussed. We are convinced that he sought a divorce, that he was dissatisfied with the terms prescribed by his wife, and that his apathetic letter of February 28, 1944, was calculated to serve him in a contemplated proceeding.
Although a finding upon a question of fact made by Chancery is entitled to great weight, nevertheless this court will, by full investigation and analysis of the evidence, itself ascertain the facts and determine whether the general finding is consistent therewith. Tierney v....
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