Jacobs v. Jacobs

• Decision Date: 28 January 1927
• Citation: 135 A. 792
• Parties: JACOBS v. JACOBS.
• Court: New Jersey Court of Chancery

135 A. 792

JACOBS

v. JACOBS.

Court of Chancery of New Jersey.

Jan. 28, 1927.

Suit by Lenora Jacobs against Samuel Jacobs for a divorce. The special master reported in favor of the defendant, and plaintiff brings exceptions. Exceptions overruled.

Messano & Messano, of Jersey City, for petitioner.

BENTLEY, Vice Chancellor. On exceptions to a master's report in a divorce suit.

The parties were married on March 5, 1922, and cohabited until the month of July of that year, when the petitioner announced to his wife that he was going to leave her, committed an assault and battery upon her, left her, and never had returned. The petitioner's brother testified that in the following December the defendant told him that he would never again live with the petitioner and would not support her under any court order.

The proofs disclose, and the special master reports, that on the 9th day of September following the desertion the petitioner commenced an action in the New York Supreme Court for a limited divorce from her husband. That action is still pending. Upon the authority of Lake v. Lake, 80 N. J. Eq. 350, 86 A. 767, the special master has reported adversely to the petitioner.

In the brief submitted on her behalf, two points are made in support of the exceptions: One is that the facts in the case at bar are not similar to those in the Lake Case, because in the earlier case the petitioner had actually secured a judgment in New York, which, in the language of Vice Chancellor Stevenson, "made it absolutely unlawful for the defendant to mend his ways and return." This point is not sound. All the authorities are to the effect that there is a presumption a spouse who commences a suit for divorce does not want to resume cohabitation, because under our law that would put an end to the action (McLaughlin v. McLaughlin,' 90 N. J. Eq. 322, 107 A. 260), and consequently the absence of the spouse complained against is not obstinate. Consequently, while the complaining spouse is under no obligations to permit the return of the erring spouse after a decree of divorce or separation, that in no wise alters the fact that it is fair to presume, ordinarily, that, after a suit is instituted, but before decree or judgment, the petitioning spouse is well content to have the other away, and such a presumption can only be overcome by competent and sufficient proof to the contrary. Therefore, the fact that in Lake v. Lake, supra, the New York suit had been prosecuted to judgment, while in the suit sub judice the New York proceeding has been neither terminated nor pressed, does not differentiate the one from the other.

The remaining point is that the present case comes within the rationale of Cook v. Cook, 97 N. J. Eq. 264, 128 A. 424. I regret that I am not able to agree with this argument either. I do not appear to have made clear my convictions in the opinion filed in that case. There the wife fought desperately to keep the companionship and love of her husband after he had left her, and even after her cause of action had accrued, in an effort to effect a reconciliation which it was his duty to seek, and, in the face of his conduct, that would have excused her, even if she had ordinarily been under a duty to seek him out and had failed to do so. Hall v. Hall, 60 N. J. Eq. 469, 46 A. 866. I said, at page 269 of 97 N. J. Eq., at page 426 of 128 A.:

"Thus the desertion being willful and continued for the requisite period, it only remains to be determined whether it was obstinate, in view of the presumption arising from the pendency of the first suit. 'Obstinate' means against the will of the other party. The facts are, as abundantly shown in the proofs, that repeated efforts were made by the defendant to secure the acquiescence of the wife in a separation. It is just as fully established that she very properly refused to agree to any such proceeding but, on the other hand, went far beyond what it was her duty to do to...