Hague v. Hague

• Decision Date: 28 January 1916
• Docket Number: No. 11.,11.
• Citation: 85 N.J.Eq. 537,96 A. 579
• Parties: HAGUE v. HAGUE.
• Court: New Jersey Supreme Court

96 A. 579

85 N.J.Eq. 537

HAGUE

v. HAGUE.

No. 11.

Court of Errors and Appeals of New Jersey.

Jan. 28, 1916.

(Syllabus by the Court.)

Appeal from Court of Chancery; Backes, Vice Chancellor.

Suit by Clara D. Hague against Henry W. Hague. From a decree dismissing the petition, petitioner appeals. Reversed and rendered.

For opinion below, see 95 Atl. 192.

J. Harry Hull, of New York City, for appellant.

TRENCHARD, J. This is an appeal from a decree dismissing the wife's petition for divorce in an undefended action. The ground alleged was desertion in December, 1911. The petition was filed February 27, 1914. The matter was referred to a special master, to ascertain and report as to the truth of the allegations of the petition.

It appeared from the depositions taken that the parties were married in 1909, and that they lived together as husband and wife for a time with the wife's parents in Glen Ridge, in Essex county, and later at various places in the same county. No children were born of the marriage.

The testimony of the wife disclosed the following matters of fact: Her husband was employed in New York City. He drank to excess and neglected her, and for long periods did not contribute anything to her support. They were frequently without means of support, except such as was earned by the wife, and their unpaid bills compelled them to move from one town to another. On the insistence of the husband's family they moved into a hotel, and she took employment there, and in that way she earned her own living and contributed to his support. The husband's conduct grew worse, and, upon his telling his wife that he "had lost all love for her," she left the apartment in the hotel and went to live at her father's house in Glen Ridge, still, however, retaining her employment at the hotel. After a few days the husband left the apartment and went to live at his parents' home in the same town. The petitioner and the defendant did not see each other again until October, 1911, when the petitioner concluded that she would "overlook everything." She sought out her husband, calling him on the 'phone, first at his house, and then at his club, and asked him if he would not meet her. He agreed, and they met in Montclair. They "talked things over," and she asked him "if he was willing to let bygones be bygones," but he said he "did not know just what he was going to do about it." The defendant asked petitioner to meet him in New York City. At that time she was attending night school in New York and he was working there in the daytime. Accordingly they met in New York, went to a hotel, and for weeks thereafter, two or three times a week, she thus met him and stayed overnight in various hotels. During this period she again asked him "if he would let bygones be bygones" and make a home for them, and he again said he "did not know just what he would do." They talked about beginning a home in a furnished room somewhere, and he said, "We will not say anything to the family now as to what we are going to do." She had been spending the evenings with him, in order, as she says, that they might "make up" and begin again in ft new home. She suggested that they take a room. He agreed that it was the proper thing to do, but "he wanted to do it in an underhand way," and did not want to tell the family. This continued from October until one evening in the last week of December, 1911. They had been to the theater together. The wife concluded that the defendant had no intention of making a home for her, but rather wanted her for "one purpose, and that was all," and that she "was not going to continue in that way." He wanted her to go to a hotel as usual. What followed may be best stated in her own words:

"I had told him that I was unwilling to go with him to a hotel in that manner when he was unwilling to furnish a home to live with me as man and wife should. When we separated that night at my cousin's home, after I had told my husband I was going back there to stay all night, we did not have any argument over that point. I had told him I was going back there, and he escorted me to the house. We did not talk about the matter at the house. Prior to going to my cousin's house my husband had expostulated with me because I would not go to the hotel with him that night. In my opinion our more or less intimate relations from the early part of October, 1911, until the night between Christmas and New Year's, 1912, was on his part simply for that one reason. So I told my husband that night, the latter part of December, 1911, that I was going to my cousin's house to stay all night, and we did not discuss the matter. We just merely went up to the house and he said, 'Good-bye.' He did not kiss me good-bye. He just left me, and I have not seen him since. I have not made any attempt to see him. My husband has not made any attempt to see me, either direct or through my family. No member of his family, so far as I know, have sought any communication with me or with any of my family. I live on Midland avenue, Glen Ridge, N. J., about four blocks south of Bloomfield avenue. My husband lives on High street, Glen Ridge, near Wildwood Terrace, which is about three blocks north of Bloomfield avenue, and although I live as near as that to him I have not seen or heard from him from that day until this. My husband is a tennis player, and he goes around in society in Glen Ridge, N. J., very prominently. He belongs to the Glen Ridge Tennis Club and the Montclair Athletic Club. He is supposed to be very popular, and from what I hear he is out a great deal in Glen Ridge and Montclair society."

The special master, considering the testimony of the wife and that of the other witnesses, to which we shall hereafter refer, concluded that a divorce should be granted for the cause of desertion, and so reported. But such report was not approved by the Vice Chancellor because he thought:

"The petitioner's testimony failed to show willful, continued, and obstinate desertion, her evidence was uncorroborated, and also, if she intended to rely upon a constructive desertion, the justifying facts and circumstances of her leaving should have been pleaded."

We are unable to concur In the conclusion of the learned Vice Chancellor. It is quite evident that the wife did not rely upon constructive desertion. She does not rely at all upon the separation of December, 1910. The narration of events leading up to and inclusive of that separation merely furnish the background of the petitioner's right of action. She bases her right to a divorce upon the ground that she, in October, 1911, realizing that perhaps both had been at fault, sought out her husband, and repeatedly, between that time and December 31, 1911, asked him to live with her again, to begin a home again, even if it was only a furnished room, and that he refused and persisted in such refusal continuously for two years. She therefore relied upon actual desertion, and it was immaterial, except as it tended to explain what happened later, whether the separation in December, 1910, was with the consent of the parties, or whether it was justified by the conduct of the defendant.

The question for consideration is, Does the proof as a whole establish an intent upon the part of the husband to desert the wife in December, 1911, and, if so, was such intent persisted in against the will of the wife continuously for two years? We are constrained to think that these questions must be answered in the affirmative.

We have no doubt that the separation of 1910 was the result of the inconsiderate conduct and talk of the husband, and his unjustifiable failure to furnish reasonable support for the wife. We may, however, assume that the separation in 1910 was by consent To turn such a separation into a desertion, the complaining party, whether husband or wife, must put an end to the agreement by requesting a resumption of matrimonial cohabitation. Chipchase v. Chipchase, 48 N. J. Eq. 549...