Porter v. Porter

• Decision Date: 16 December 1913
• Citation: 82 N.J.Eq. 400,89 A. 251
• Parties: PORTER v. PORTER.
• Court: New Jersey Court of Chancery

89 A. 251

82 N.J.Eq. 400

PORTER

v. PORTER.

Court of Chancery of New Jersey.

Dec. 16, 1913.

For other definitions, see Words and Phrases, vol. 8, p. 7615.]

Divorce action by Grace M. Porter against Frank Hankey Porter. On exceptions to a master's report in favor of defendant. Exceptions overruled.

J. Lefferts Conard, of Trenton, for exceptant.

WALKER, Ch. This was a divorce case in which the petitioner charged the defendant with willful, continued, and obstinate desertion, and prayed a divorce a vinculo matrimonii, accordingly. The defendant was served with process of citation and a copy of the petition. At the time of such service he was confined in the New Jersey State Hospital at Trenton as an insane person, and the clerk of this court was thereafter appointed guardian ad litem for him in this cause. The matter was referred to Richard C. Chamberlain, Esq., one of the special masters of this court, to take depositions and other evidence and report thereon. This he did under date of November 5, 1913, and, among other things, reported as follows: "And I find and report that the petitioner and the defendant cohabited after their said marriage until the 25th day of August, A. D. 1900, and that on said lastmentioned date the defendant left the petitioner, and has never since that date returned to her, offered to provide a home for her, or contributed to her support. And I find and report that on the 15th day of March, A. D. 1901, the defendant was incarcerated in the New Jersey State Hospital for the insane, and was confined in that hospital continuously from that date until after the filing of the petition in this cause; that the statutory period of desertion in this state, as declared in Myles v. Myles, 77 N.J.Eq. 265 , is the two years immediately preceding the filing of the bill or petition, and that during the whole of such period the defendant was confined in the New Jersey State Hospital for the Insane at Trenton, in this state. In Pile v. Pile, 94 Ky. 308 , it was held that 'involuntary absence while confined in an insane asylum is not desertion.' The New Hampshire statute provides: 'Abandonment to constitute a cause of divorce, must continue for three years together.' Pub. St. c. 175, § 5, and in that state the Supreme Court held that: 'The time during which the defendant has been insane cannot be included in computing the statutory period. But for her insanity, it may be that she would have repented, and returned to her husband.' Storrs v. Storrs 34 Atl. 672 (N. H. 1894). And in Matchin v. Matchin, 6 Pa. 332, it was held that: 'General insanity is a full defense for all acts which by the statute are grounds of granting divorce. In regard to severity and desertion, there could be no question. There is wanting the consenting will which is indispensable to give the acts the quality either of severity or desertion.' Under 'An act providing for divorce and for decrees of nullity of marriage, and for alimony and the maintenance of children (Revision of 1907),' P. L. 1907, p. 474, divorces from the bond of matrimony may be decreed for 'willful, continued, and obstinate desertion for the term of two years.' And section 31 of the same act provides: 'Willful...