Munger v. Mlinger

• Decision Date: 19 September 1941
• Docket Number: No. 204.,204.
• Citation: 21 A.2d 784,130 N.J.Eq. 279
• Parties: MUNGER v. MLINGER et al.
• Court: New Jersey Supreme Court

21 A.2d 784

130 N.J.Eq. 279

MUNGER

v. MLINGER et al.

No. 204.

Court of Errors and Appeals of New Jersey.

Sept. 19, 1941.

[Copyrighted material omitted.]

Appeal from Court of Chancery.

Suit for divorce by Edwina Yewell Munger against Clarence A. Munger, wherein defendant filed a counterclaim and Emma Lynn intervened. From a decree granting the husband a divorce on his counterclaim, plaintiff appeals.

Decree reversed pro tanto and cause remanded with direction.

Boyle & Archer, of Camden (William T. Boyle, of Camden, of counsel), for appellant.

Walter S. Keown, of Camden, for defendant Clarence A. Munger.

Clifford A. Baldwin, of Camden, for intervening defendant Emma Lynn.

HEHER, Justice.

The challenged decree dismissed the petition for divorce and granted the defendant husband a divorce on his counterclaim. The petition charged that he was guilty of adultery with the intervener on "different days" of the first four months of the year 1938, and also of desertion "in the month of October, 1926, by his unjustified refusal to cohabit with petitioner," and its continuance for the statutory period. The counterclaim, interposed on June 9, 1938, pleaded desertion "during the month of October, 1926"; and this was likewise grounded in the wife's asserted refusal of sexual intercourse. An amended counterclaim, filed on January 4, 1939, averred the occurrence of the desertion in the month of October, 1930. The amendment was made to correct what the counterclaimant termed a "typographical error."

Upon the conclusion of petitioner's case, the petition was dismissed for "insufficient proof." This was in response to the husband's motion directed solely to the count for desertion, and the intervener's motion addressed to the count for adultery. While the husband did not join in the latter motion, he entered no objection to that course.

As to the counterclaim, the learned advisory master found that petitioner "separated herself sexually from" her husband "upon her return from France in October, 1930; that her reason therefor was her belief, predicated upon her French doctor's declaration, that sexual intercourse was the cause of her corpulency; that she then chose to forego and ever since has steadfastly refused to submit to sexual relation with defendant for fear that her reducing treatments might become either ineffective or retrogressive"; that "when cohabitation, in its true sense, in the marriage relation thus ceased, desertion commenced"; and that the desertion was wilful, continued and obstinate.

With respect to the element of obstinacy, he perceived no evidence tending to show that the husband "contributed in any degree to the separation"; and he concluded that the wife's married life was one of such "comfort and ease" as to give rise to "a sense of smug security against her friends and defendant's friends obtaining knowledge of her sexual abstinence," and to afford her "opportunity * * * to carry on her dietary program at the sacrifice of the sexual obligation she owed, as a wife, to defendant and with but slight possibility of the true situation becoming known to outsiders"; that, "possessing this distinct advantage," she "had nothing to lose but much to gain by her selfish determination to masquerade as defendant's wife," and "she thus maneuvered defendant into the condition which now exists and from which she now seeks to prevent his escape"; that "all of this * * * presents substantial reason why continuance of conciliatory overtures by defendant would have been unavailing"; that, in the circumstances, the "burden" of making "conciliatory overtures" was upon the wife rather than the husband; that, "while the law requires much of an offending husband it does not expect less from an offending wife"; and, finally, that "when petitioner sexually separated herself from defendant she did so with a fixed determination not to return to him, and that any effort on his part to induce her to resume sexual cohabitation with him would have been unavailing."

Citing Gordon v. Gordon, 89 N.J.Eq. 535, 105 A. 242, the master excluded evidence offered by petitioner as to "circumstances and incidents" which occurred more than two years subsequent to the alleged act of desertion, on the ground that, if there was such cause of action for divorce, it had accrued at the expiration of the statutory period and "could not be divested except by" the defendant's "own act."

The appeal is from the whole of the decree.

There is error in matter of law in the foregoing ruling. If, as the master found,' petitioner's abstinence from marital intercourse was at the outset induced solely by her belief that it was an essential part of a flesh-reducing regimen prescribed by her physician, desertion did not then "commence" within the intendment of the statute, R.S.1937, 2:50-2 et seq., N.J.S.A. 2:50-2 et seq.

In 1930, when petitioner submitted to medical treatment at Vichy, France, she weighed 300 pounds, and was in ill health, attributable in major part to obesity, so much so, she affirmed, that the prognosis was very unfavorable unless immediate expert care was had. She "had an extremely rapid heart, high blood pressure" and "excessive weakness." She journeyed to Vichy for this purpose on the advice of her local physician; and the result, she said, was a reduction in weight of more than 130 pounds and a marked improvement in health. There is no question that she consistently adhered to a severe reducing-diet. Conceding that his wife was not in good health when she made the trip to Vichy, the defendant asseverated that upon her return, and likewise after another journey there in 1931, "her health was in a worse condition than before she left," an "impairment" which in his judgment was due to the "treatments"; and his cross-examination reveals at least great doubt in his own mind as to whether petitioner's "health was such" thereafter "that it was not right for her to submit to sexual intercourse."

If petitioner withdrew from conjugal intercourse for substantial reasons of health alone, the inference of a wilful desertion, i. e. an unjustified cessation of cohabitation with intent not to resume the relation, is utterly unsustainable. Marsh v. Marsh, 14 N.J.Eq. 315, 82 Am.Dec. 251; Sergent v. Sergent, 33 N.J.Eq. 204, reversed on other grounds, Sargent v. Sargent, 36 N.J.Eq. 644; Carroll v. Carroll, 68 N.J.Eq. 724, 61 A. 383; Caffrey v. Caffrey, 74 N.J.Eq. 834, 70 A. 922; Oertel v. Oertel, 83 N.J.Eq. 39, 90 A. 1006; Rains v. Rains, 127 N.J.Eq. 328, 12 A.2d 857. The wrongful intent is of the essence of the act. It is settled in this State that, to constitute desertion, the abstention from matrimonial intercourse must have been without just cause or excuse. Langille v. Langille, 119 N.J.Eq. 12, 181 A. 45; Haviland v. Haviland, 114 N.J.Eq. 96, 168 A. 260; Haskell v. Haskell, 99 N.J.Eq. 399, 131 A. 876; Parmly v. Parmly, 90 N.J.Eq. 490, 106 A. 456; Rector v. Rector, 78 N.J. Eq. 386, 79 A. 295; Oertel v. Oertel, supra; Raymond v. Raymond, N.J.Ch., 79 A. 430. See, also, 1 Bishop on Marriage and Divorce, 5th Ed., § 782. The general rule elsewhere is that cessation of connubial cohabitation, even though not warranted by considerations of health, is not such an abnegation of marital duties as to constitute desertion. 17 Am.Jr. p. 206. And such was the early view of our statute. Reid v. Reid, 21 N.J.Eq. 331; Watson v. Watson, 52 N.J.Eq. 349, 28 A. 467, But petitioner did not plead a justifiable denial of matrimonial intercourse. E contra, she maintained that it was her husband who had offended in this regard; and that his failure of conjugal duty had been continuous from the month of October, 1926. He had expressed to her a dislike of "married life," and a determination "not to have any more children." Yet the master found convincing evidence that petitioner, on her physician's advice, had withdrawn from the sexual relation as a weight-reducing measure; and the petitioner herself at one point in her testimony, inadvertently or otherwise, made what seems to have been an admission of her belief that such cohabitation had in some degree contributed to her corpulency, though earlier she testified that she had informed her husband it was her physician's view that the condition was ascribable to "the prestation of natural instinct" incident to his withdrawal from that relation.

It does not matter that the parties were on common ground at the hearing as to nonintercourse subsequent to the month of October, 1930. That does not conclude the issue. Counsel seemingly labors under a misapprehension of the law. It is the settled rule that a divorce will not be granted upon the uncorroborated testimony or admissions of the parties respecting the elements of the matrimonial offense charged. This requirement is embedded in sound public policy. Stieglitz v. Stieglitz, 92 N.J.Eq. 292, 112 A. 310; McLain v. McLain, 91 N.J.Eq. 530, 116 A. 701; Hague v. Hague, 85 N.J.Eq. 537, 96 A. 579; Parmly v. Parmly, supra; Garrett v. Garrett, 86 N.J.Eq. 293, 98 A. 848.

And the evidence in this behalf is not altogether convincing. Indeed, the course of conduct cited by defendant in refutation of petitioner's testimony of a complete cessation of matrimonial intercourse from the month of October, 1926, in...