Power v. Power

• Decision Date: 20 June 1904
• Citation: 58 A. 192,66 N.J.E. 320
• Parties: POWER v. POWER.
• Court: New Jersey Supreme Court

58 A. 192

66 N.J.E. 320

POWER

v. POWER.

Court of Errors and Appeals of New Jersey.

June 20, 1904.

(Syllabus by the Court.)

Appeal from Court of Chancery.

Bill by Mary M. Power against Henry Power. Decree for defendant (55 Atl. 111), and plaintiff appeals. Reversed.

Richard V. Lindabury and Wm. R. Barricklo, for appellant.

Crouse & Perkins, for respondent.

DIXON, J. The parties to this suit were married June 24, 1891, in Montclair, and resided there as husband and wife until September, 1899, during which time they had three children, of whom two are still living. For some time prior to September, 1899, their cohabitation had not been harmonious, and early in that month the husband told his wife that her presence was extremely distasteful to him, that he was very sorry he had ever met her, and that he did not wish to live with her. To this the wife replied that she was perfectly willing to do everything in her power to make their home life as pleasant as possible, and that it made her extremely unhappy to see matters in such a condition, and she asked him if they could not be adjusted. He answered that he had not the slightest intention of trying in any manner whatever; that he did not desire and did not intend to. A day or so afterwards the wife requested her brother-in-law, Mr. Westervelt, to see her husband about their difficulties. Mr. Westervelt did so, and on the witness stand thus related his interviews with the husband: "I told Dr. Power [the husband] that his wife had told me of her last conversation with him; that she wanted me to see him; that his father also wanted me to see him, and do what I could to make him willing to continue to live with her. I asked him if he would not be, under any circumstances, willing to do so; told him she had asked me to ask him that. He said he would not; he would not live with her under any circumstances; he wanted to be rid of her. I asked him what his reasons were— whether he had anything against her. He said, 'That has nothing to do with the case;' the fact was that he would not live with her. I tried to make him change his mind; talked to him about the disgrace it would bring upon his children; suggested to him that it would be more expensive than he could stand. I brought every means I could think of to bear upon him to make him state that he would be willing to try to continue to live with his wife. He refused. I asked him if there was not something she could do—any change she could make in the course of her living—that would make him more contented with his home life; stated that she was willing to do anything that he would ask her. He said there wasn't anything." A few days afterwards, "on the morning of September 14th, I went into his office shortly after breakfast. I said that his wife had asked me to make another appeal to him; that she was exceedingly desirous on the children's account, if on no other, to keep the home together—to patch things up so that they could continue to live together. He cut me very short, and said there was nothing further of that kind to discuss—he wouldn't discuss it—and furthermore he thought he had made it clear to me the last time I had seen him that what he wanted was a divorce. He expressed a wish that she should get a divorce from him. I said she was unwilling to—wouldn't do it. He asked me questions about the law in the matter [Mr. Westervelt being a lawyer], and I explained it to him. 'Well,' he said, 'I want that divorce, and I don't want anything else —all my efforts will be directed to that end— and I want you to put it to Mary [Mrs. Power] in that light'" The truth of this narration is not denied. On the same day the husband left home, and went to live with his father, in the same town, and since that time the husband and wife have lived apart. Immediately after the separation the husband employed an attorney (Mr. Jones) to act for him in the matter. Thereupon Mr. Jones saw Mr. Westervelt, and assured him that Dr. Power would not return to the house while his wife was in it; that it was desirable to arrange some modus Vivendi; that Dr. Power would require his wife to leave Montclair, and sign away all her dower, as a condition of receiving any support from him; that Dr. Power wanted to keep his house and his office, which was in it (he being a physician), and Mrs. Power must leave, as he would not live with her; that, if she did not leave Montclair, and sign an agreement which should be prepared, she would not get any support from him, but, if she did do so, Dr. Power's father would be willing to look after the matter of income. This being the attitude of the parties, an agreement was prepared, and on November 15, 1899, Mrs. Power, on the advice of Mr. Westervelt, and having, she says, no other alternative, joined with her husband and a trustee in signing it. This writing declares that Dr. and Mrs. Power agree that they will live and continue to live apart; that Mrs. Power shall not remain in Montclair, but, outside of that town, shall have the right to choose her own separate residence; that she shall execute proper instruments for relinquishing her right of dower; that she shall have the custody of the children until they are seven years of age, after which their custody shall be subject to further arrangement; and that Dr. Power will pay to the trustee $95 a month for the support of Mrs. Power and the children during her natural life, subject to deduction in certain specified events. Upon the execution of this instrument, Mrs. Power, with her children, moved to the city of New York, where she has since resided, receiving from her husband or his father $95 per month, and by her own exertion as a teacher earning the rest of her necessary expenses. In November, 1902, she filed a petition in the Court of Chancery for divorce because of her husband's desertion, but, after hearing, the petition was dismissed on the ground, first, that there had been no desertion; second, that, if there had been, it ceased to be willful and obstinate upon the execution of the agreement. From this dismissal the petitioner appeals.

That on September 14, 1899, Dr. Power deserted his wife, seems to us indubitable. Having declared to her that he would not live with her, having heard her earnest expres sions of desire that their cohabitation should be continued, he abandoned the matrimonial home, and asserted his determination not to return while she was there. Certainly nothing more is wanting to make desertion complete. That he continued to send provisions to the house, so that his wife and children might have food, may indicate that he had not given up all concern for their existence, but is not at all inconsistent with the matrimonial offense called "desertion." As was said by Lord Penzance in Yeatman v. Yeatman, L. R. 1 P. & D. 489: "A wife is entitled to her husband's society and the protection of his name and home in cohabitation. The permanent denial of these rights may be aggravated by leaving her destitute, or mitigated by a liberal provision for her support; but if the cohabitation is put an end to against the consent of the wife, and...