Orens v. Orens

• Decision Date: 20 December 1917
• Citation: 102 A. 436,88 N.J.Eq. 29
• Parties: ORENS. v. ORENS.
• Court: New Jersey Court of Chancery

102 A. 436

88 N.J.Eq. 29

ORENS.

v. ORENS.

Court of Chancery of New Jersey.

Dec. 20, 1917.

(Syllabus by the Court.)

Suit for divorce by Marie L. Orens against Isaac W. Orens. The advisory master on final hearing on petition for divorce and proofs ex parte filed conclusions advising against a decree nisi, with leave to take additional testimony before the master. Order made in conformity to conclusions.

This matter was referred to Samuel D. Oliphant, Esq., advisory master, who filed the following conclusions:

On final hearing on petition for divorce and proofs ex parte.

The petition alleges desertion in the month of June, 1905. Suit was commenced December 9, 1910. In the proofs returned with the special master's report in favor of a decree of divorce, there was no corroboration of petitioner's testimony to the first four years of the alleged desertion. Upon receiving my memorandum to that effect, solicitor obtained an order of re-reference for further proofs of the continuation of the desertion. The proofs returned with the second report of the special master added corroboration only as to the first "two or three" years. The special master in his second report stated that he had "reported favorably under the prior testimony because it seems to be the practice of the court that desertion need to be shown to have existed only during a period of two years prior to the filing of the petition." He then continues: "The testimony as now submitted still leaves a period of a little over two years uncorroborated. The master is of the opinion, however, that the desertion being corroborated for the first 18 months and from the year 1909, to the present date, the law properly presumes an uninterrupted continuance of the desertion."

I know of no authority for such a presumption, and, since the continuity of the desertion for a stated period is plainly a principal part of the proof required by the statute (Divorce Act 1907, P. L. p. 474, § 2), I am unable to accept the existence of such a rule of evidence. The case then distinctly raises the question of whether it is the established law of this state that the desertion must be proved to have been "continued" from the date of separation of the parties to the commencement of the suit, although that period may be much longer than two years. It is not questioned in practice that the two years' continuation expressly required by the statute necessitates the proof of continuation for that time immediately preceding the commencement of suit. The reasoning adopted by this court in the several cases upon the point is, in the language of the Court of Errors in Myles v. Myles, 77 N. J. Eq. 265, 76 Atl. 1037: "That the period of desertion must be that immediately preceding the petition is plain from the fact that, if the petition left a hiatus between such period and the date of the filing of the petition, such hiatus might represent a complete reconciliation and reunition of the parties that would entirely destroy any right to a divorce arising out of a previous desertion."

The difficulty with which the court is confronted in a very large proportion of the uncontested suits for divorce is an existing view of the requirements pertaining to the first part of the period of desertion. But it is apparent that the same reasoning is of like force when applied to the first part of the period. If there is no proof of the continuation during all the earlier part, there might have been a like hiatus in which marital relations could have been resumed, thus terminating the desertion and the right to a divorce. This I take to be, the law resulting from Myles v. Myles, supra; Getz v. Getz, 81 N. J. Eq. 465, 88 Atl. 376; and Lake v. Lake, 89 Atl. 534.

In causes for divorce for desertion, there are two period of two years each during which the desertion must have been willful, continued, and obstinate; the first, that immediately succeeding the desertion, at the expiration of which the cause of action arises and accrues, and which vests jurisdiction in the court to entertain the suit; and, the second, that immediately prior to the filing of the petition, which vests jurisdiction in the court to decree a divorce. These periods may overlap each other in whole or in part; but,...