Jones v. Jones

• Decision Date: 11 June 1894
• Parties: JONES v. JONES.
• Court: New Jersey Court of Chancery

29 A. 502

JONES

v. JONES.

Court of Chancery of New Jersey.

June 11, 1894.

(Syllabus by the Court.)

Bill by John Jones against Agnes Jones for divorce. Dismissed.

John W. Bissel, for petitioner. George J. McEwen, for defendant.

GREEN, V. C. The petition in this case was filed by the husband against the wife for divorce on the ground of her willful, continued, and obstinate desertion. The answer of the wife, after admitting the marriage, and that she left the residence of petitioner at the time alleged, seeks to excuse her act on the ground of his cruel and inhuman treatment, and failure to properly provide for his family. She denies that she deserted the petitioner, and charges that she was driven away from his house by his cruelty, which she alleges made it dangerous for her to remain with him. She further answers that she separated from her husband under and by virtue of a decree of separation made in the supreme court of New York on the 6th day of June, 1890, in an action brought by her against the petitioner, a copy of which she annexes to and makes a part of the answer; and says that she now is, and since June 6, 1890, has been, living separate from her husband, under the said decree, which she avers is a decree of a court of competent jurisdiction, having jurisdiction both of plaintiff and defendant. There is no dispute but that the defendant left the matrimonial home. If she was not at the time legally absolved from her duties as a wife, it was desertion on her part, unless she was justified, by his conduct, in so doing. The latter depends not only on whether she had good reasons to leave, but whether she did in fact leave for such cause. The first inquiry, then, is, why did she leave her home? She now says, on account of her husband's cruelty. There is but one well-defined charge of personal violence made, and much confusion exists as to its date. At first it was sworn to as having taken place on Saturday, February 28, 1891. Maud Jones, the daughter, testified that this was the date; but Jones, who is a locomotive engineer, is shown to have been on the railroad at that time. The defendant then says that the occurrence took place on Friday, the 27th. The difficulty is said to have taken place in the morning; some one says after the breakfast things had been cleaned up,—about 10 o'clock. If so, Maud, the daughter, was at school. A neighbor (Mrs. Humblebie) says that the difficulty was two months before the defendant left her home. If that is the occasion complained of, it could scarcely be said to be the cause for the desertion. The defendant, the day after she left her home, applied to a justice for a warrant for the arrest of her husband on the ground of nonsupport, but was told by him he could only issue one on the application of the overseer of the poor, but that he could issue a warrant for assault, and she then made a complaint to that effect. To another justice she said she had no complaint to make for violence, but that she would not live with him if he was the last man on earth. I am forced to the conclusion that, if this alleged assault took place, it was not the cause of the defendant's leaving her home, but that she left for an entirely different reason. Her mother, Mrs. Bodine, had lived with them, and Jones had determined that she must go elsewhere. He so informed Mrs. Bodine; and told his wife, when he went away to his work on Monday morning, that she must be prepared to move on Tuesday to a house he had rented, which was known as the "Grandin House," and also that her mother could not go with them to live there. Defendant, her mother, and daughter, after his departure, made their preparations for moving. They rented another house, and moved into it, and when Jones returned he found his home deserted, and household goods gone. On the next day he went to see his wife, and asked her if she would come back, to which she replied, "No." He met with the same refusal the next day. She would not recognize him when they met upon the street. Maud, the daughter, states the reason for their leaving home to have been a determination on the part of her mother not to live in the Grandin house, which her father had rented, and her mother's dissatisfaction with the provision Jones made for his family. Defendant made the charge in her answer that Jones denied them the actual necessaries of life, but abandoned the charge on the trial. These charges seem to me to have been made to conceal the real reason of the separation, namely, because Jones had determined that his mother-in-law should no longer make one of the household; and the defendant, on being forced to make a choice between her mother and her husband, decided to go with the former, under the idea that she could make her husband support her while living separate, and with this in view sought out the justice the next day after leaving; and it was only after hearing that application for support must be made through the overseer of the poor that she made the charge of cruelty. Jones several times besought her to return to her home, and she refused, and I should have no hesitation in advising a decree for divorce in his favor were it not for the defense which the wife interposes of a judgment of separation entered in the supreme court of the state of New York. That judgment was entered in the supreme court June 6, 1890, in the suit of Agnes Jones against John Jones, and, after reciting the proceedings in the cause, by which it appears that Jones appeared in the action, and answered in the cause, and that the issues were tried, it proceeds as follows: "It is ordered, adjudged, and decreed as follows: That the plaintiff in this action, to wit, Agnes Jones, and John Jones, be, and they are hereby, separated from bed and board forever." This judgment unquestionably released Mrs. Jones from her duty as a wife to live with her husband, and her separation from him cannot be called in law a desertion, if the decree continues operative and effective.

The petitioner's counsel claims that the subsequent reconciliation of the parties has the effect of nullifying the judgment. The return of Mrs. Jones to her husband was voluntary. There was no element of fraud, deceit, or misrepresentation on his part. She came, and he received her, and they lived together as man and wife for some time. What effect has this conduct on the judgment, so far as their marital duty of living together is concerned? It is not now necessary, and it is not intended, to pass on the effect of this reconciliation as a waiver of alimony granted by the judgment, but simply whether this voluntary reconciliation and return to cohabitation by the wife destroys the warrant and judgment of the court that she may live separate and apart from her husband. This is a judgment of a court having jurisdiction of the parties and of the subject-matter. It is final and conclusive between the parties until it is regularly made nugatory. Not only by the constitution of the United States has this judgment the same force and effect in New Jersey that it has...