Hunter v. Hunter

• Decision Date: 10 November 1902
• Parties: HUNTER v. HUNTER.
• Court: New Jersey Court of Chancery

53 A. 221

64 N.J.E. 277

HUNTER

v. HUNTER.

Court of Chancery of New Jersey.

Nov. 10, 1902.

Petition for divorce by Maria B. Hunter against Arthur B. Hunter. Petition dismissed, or referred back to the master.

Charles C. Babcock, for petitioner.

STEVENSON, V. C. The order of reference in this cause contained a special direction to the master, which probably he inadvertently has overlooked. The order directed the master to "specially inquire and report what motives Induced the petitioner to take up her residence in this state, what her occupation has been while residing in this state, and where such occupation has been pursued, and generally as to the bona fides of petitioner's residence in this state." The master has made no report according to this special direction. He appears to have recalled the petitioner, and to have asked her a few questions upon the special subject above indicated; but the meagerness of the examination and the silence of the report in regard to it leave it open to doubt whether or not the master, in addressing these few interrogatories to the petitioner, considered that he was complying with this special direction of the order. The case is one which calls for a thorough performance by the master of the requirement of the order of reference, and to that end the petitioner should be ready to produce all the evidence within her power until the measure of proof required in such a case is full.

The petitioner was married in the state of New York, in which state was the matrimonial domicile. In New York desertion is not a cause of absolute divorce. She remained a resident of New York after her marriage for a period of over 10 years. Two years and a half after the original desertion or separation of the defendant occurred the petitioner claims to have abandoned her residence in New York, and established a permanent residence at Atlantic City, in New Jersey. Two weeks after the expiration of the statutory period of two years, the petition in this case was filed. While it is unnecessary at present to discuss at length the testimony so far taken in this cause, it may be profitable to point out that a large part of the case, including the jurisdiction of the court of the matrimonial status of the petitioner, is based upon the petitioner's testimony alone. Much of this testimony also comes in response to questions which are more or less leading. No independent witnesses who can speak with apparent knowledge of the facts are produced to show that the petitioner has continuously resided in Atlantic City, that she has established any permanent business there, or formed any social or other ties which usually would be created by a woman who broke away from a residence in one state and moved with her sons into another with intent to abide permanently. The two sons of the petitioner by a former marriage, who certainly cannot be far from an adult age, and who, the petitioner swears, accompanied her to Atlantic City, and lived there with her, are not sworn as witnesses on her behalf. What is even more noticeable is the fact that the petitioner, after testifying to what are practically conclusions of law to establish the necessary residence in the state, is not cross-examined in regard to any one of the numerous details of life, the disclosure of which always throws light upon the nature and contemplated duration of any residence which is under judicial investigation. The petitioner may intend to be absolutely truthful in answering the most important questions which were put to her, and yet she may have answered them erroneously. Sometimes she qualifies the expected answer to a leading question in a very suggestive way. This leading question was put: "And have you been keeping a boarding house since you came here to reside?" and the answer is, "Yes, since 1809, off and on." To the question, "Is it your intention to reside permanently in Atlantic City?" the petitioner answers, "Yes, so far as I know." This court is practically asked to act upon the petitioner's uncorroborated testimony to the effect that, in her judgment, as a correct conclusion of law and fact, she has maintained a permanent residence animo manendi in the state of New Jersey since July, 1899. One witness. It is true, was brought to corroborate the petitioner, and this witness testifies that the petitioner had been living in Atlantic City since July, 1899. But, as this witness testified that he resided in Philadelphia, and did not indicate in the slightest degree what the sources of his knowledge were in regard to the petitioner's residence in Atlantic City, the deposition seems to be entitled to very little, if any, weight. My conclusion in this case is that the petitioner has failed to show by sufficient testimony that she has maintained such a residence in New Jersey as is necessary under our statute to give the court of chancery jurisdiction of her matrimonial status; that her own testimony, even if it had been more ample, and in a better form, would have required corroboration under a safe rule of evidence.

The court of chancery has to deal with a large and increasing class of divorce cases which uniformly present the following facts: First Desertion commenced in a state of which the complainant and defendant are both residents, and in which desertion is not a ground for absolute divorce. Second. The establishment by the complainant, after the desertion has commenced, of some sort of a residence in the state of New Jersey, and the maintenance of that residence, or the alleged maintenance of it, for the term of two years. Third. Prompt application at the end of the two years to the court of chancery for an absolute divorce on the ground of desertion as a complete matrimonial offense committed in New Jersey. From these facts the inference is drawn that the complainant established and maintained his residence in New Jersey for the purpose of doing the very thing that he did with his residence, viz., using it as a means of obtaining an absolute divorce at the end of two years. The further inference is natural that as the purpose which actuated the complainant in establishing his residence in New Jersey, was to accomplish a transient object, the contemplated duration of the residence was also transient. Hence, where the facts above stated appear, a presumption is established against the existence of that sort of a residence which is necessary to give the court of chancery of New Jersey jurisdiction of the matrimonial status of the complainant. This presumption, however, is not irrebutable. It may be overcome by the requisite amount of proof. Formerly there may have been room for doubt as to whether, when the purpose of the complainant in coming into the state, as declared by him or inferred from the facts, was that he might obtain a divorce, his residence so established could, on grounds of public policy, be brought within the meaning of our divorce act This whole subject is covered, and the decisions on the subject cited, in the opinion of the present chancellor in Sweeney v. Sweeney, 62 N. J. Eq. 357, 50 Atl. 785. It was not intimated by me in the case of Grover v. Grover, 50 Atl. 1051, that a residence established for the purpose of founding a divorce suit may not in fact be a permanent residence established and maintained animo manendi. A man may certainly acquire a permanent residence, intending to maintain it during his whole life, from a motive which is entirely transient A resident of New York may be able conveniently to break his residence there, and establish a permanent residence In New Jersey, when it would be extremely inconvenient or difficult for him to return to New York after two years, or any other period; and he may, therefore, have no such intention. While the underlying motive for establishing a residence in New Jersey may be the intention to apply for a divorce to the courts of New Jersey at the end of two years, there is no reason why the further intention may not exist bona fide to reside continuously...