Herold v. Herold

• Decision Date: 10 September 1890
• Citation: 20 A. 375,47 N.J.E. 210
• Parties: HEROLD v. HEROLD.
• Court: New Jersey Court of Chancery

20 A. 375

47 N.J.E. 210

HEROLD

v. HEROLD.

Court of Chancery of New Jersey.

Sept. 10, 1890.

(Syllabus by the Court.)

On final hearing on bill, answer, and proofs, taken in open court.

Wm. Brinkerhoff, for complainant. Warren Dixon, for defendant.

GREEN, V. C. The complainant brings this suit for divorce from his wife, on the ground of willful, obstinate, and continued desertion for three years. On the nonappearance of the defendant, and on the report of the master to whom the cause was referred, a decree of divorce was entered in favor of the complainant. On application by the defendant, this decree was opened, and she was allowed to come in and defend. She has filed an answer, denying the desertion, and, by way of cross-bill, alleges desertion on the part of complainant for three years, and asks for a decree in her favor. The parties were married in the city of New York on the 10th day of December, 1876. Complainant was a widower, 45 years of age, with five children, and lived with his family in Ninth street, in that city, his place of business being on the ground floor of his place of residence. The defendant was a widow, from appearances not the junior of the complainant. She had three children, and the control of some money as the guardian of those children. After the marriage, the parties lived at the residence of the complainant, in Ninth street, in New York city. There is no evidence whatever to support the allegations of the bill that defendant was addicted to the free use of liquor, and was frequently in a state of intoxication. The complainant and his son and daughter testify that the defendant was quarrelsome, jealous, and abusive; that almost from the time of her marriage she was unkind to her husband. This seems exaggerated, and is inconsistent with the other testimony of the daughter, that defendant was kind and indulgent to the children, and that they all got along very well, except the boy, who seems to have exercised his ingenuity to make her life miserable. It appears that she bought with her own money furniture, clothes, and a piano for the girls, paid for their education; and that she loaned the complainant $3,500 of the money belonging to her children, on a mortgage, besides furnishing him with other sums in his business. She, on her part, says that occasionally, if not frequently, her husband returned late at night intoxicated, and, when in that state, would boast of his amours with other women, and speak disparagingly of her age and appearance. His denial of this is quite as positive as her statement. There can be no doubt, however, that, long before the separation, the relations between the two were anything but those which should exist between man and wife. She admits her jealousy, and gives as her reason for it the stories he related when in his cups. She testifies to her unhappiness from his treatment and that of his son. She says that when she could not give him any more money he treated her in this manner, and intimates this was the reason for his change towards her. It appears that this condition of affairs culminated in a quarrel. She ceased to attend to any of the household duties, and at last, on January 2 or 3, 1877, after they had been married a year and a few days, told him plainly that she could not and would not live with him any longer. He sent for a neighbor, and, in her presence, told him his wife wanted to leave him, that this was her home, and where she belonged, and if she went away he would not be responsible for anything. Great stress is laid upon this interview to show that her going was against his wish. It appears strange that a husband should call in his neighbor to hear his wife announce her determination to leave, but in this case, as that neighbor had been in the habit of giving money to the wife, which complainant had paid, the suspicion is created that the neighbor was called to hear the declaration that if she went he would not be responsible for her debts rather than the protest to her going. Beyond the declaration in the neighbor's presence, complainant took no steps to induce his wife to remain. This interview was in the morning. She did not leave until the evening, and he does not pretend that he reasoned with her, that he tried to reconcile her, or that he ever saw her again after the morning interview in the shop, except on one occasion. In the afternoon she took all her property, employed a cartman, and moved her things away. The evidence fails to justify defendant in her departure from her home, and relieve her from the charge of willful desertion: yet complainant cannot claim to have been free from blame in not correcting the causes of her dissatisfaction, and in permitting her departure without an attempt at reconciliation. It appears that the parties met at a Mr. Stein's some six months after the separation. What the object of the meeting was does not clearly appear. Whether it was with reference to a suit she had commenced against him in New York, or with reference to the mortgage he had given to secure her for the $3,500 of her children's money she had loaned to him, or both, is uncertain. He says that he then asked her to return. She denies this, and says she was...