Rogers v. Rogers

• Decision Date: 24 April 1913
• Citation: 81 N.J.Eq. 479,86 A. 935
• Parties: ROGERS v. ROGERS.
• Court: New Jersey Supreme Court

86 A. 935

81 N.J.Eq. 479

ROGERS

v. ROGERS.

Court of Errors and Appeals of New Jersey.

April 24, 1913.

(Syllabus by the Court.)

Appeal from Court of Chancery.

Bill by Henry O. Rogers against Helen A. Rogers for divorce. Decree for defendant, and plaintiff appeals. Reversed, and decree rendered for plaintiff.

Archibald C. Hart, of Hackensack, for appellant.

Hance & Miller, of New York City, for respondent.

WALKER, Ch. Mr. Rogers filed a petition for divorce in the court below alleging willful, continued, and obstinate desertion by his wife for the statutory period of two years. She answered denying the desertion, and averred that she went to the home of her parents in New York City in the month of August, 1908, with their children, and that the petitioner refused to permit her to reenter their home at Hasbrouck Heights, N. J., and barred the house against her; that she had at all times been anxious and willing to return to the petitioner and so informed him, provided he would cease from cruel and inhuman treatment toward her and cease from treating her as a servant and permit her to be mistress of the household and rear her children as the wife of the petitioner, to all of which requests the petitioner refused to accede; that after August, 1908 (the time of the separation), the petitioner refused to provide her with money for the support of herself and children; and that she commenced a suit in chancery for such support, which resulted in his agreeing to pay her the sum of $3 per week for the support of their two children, and that he has continued to pay such weekly sum.

The cause was referred to Vice Chancellor Stevenson, who advised a decree dismissing the husband's petition. In the course of his oral opinion he remarked: "When a man sues his wife for divorce for desertion and charges her with willful, continued, and obstinate desertion, he must prove that the desertion had those three characteristics. The burden is upon the husband, the petitioner. He must show by a preponderance of the evidence that his wife was guilty of obstinate desertion, and in my judgment in this case the husband entirely fails. As I have already indicated, the great weight of the evidence in this case tends to show that there was no such obstinacy on the part of the wife; that if proper approaches had been made to her, if an honest, sincere effort had been made by the husband for a reconciliation, it would have been successful."

We are in accord with the proposition that a party to a suit for divorce, who charges the other with willful, continued, and obstinate desertion, must prove that charge, and that the burden of proof is cast upon him or her who prefers it. This is axiomatic. It has been so often decided as not to need the citation of authorities to support it.

In this case the defendant left the petitioner and has remained away from him for more than the statutory period of two years. Was she justified? If not, was the husband obliged to make a proper effort to induce her to return? This, in turn, involves the question whether such inducement would have been futile, and was so understood by the husband.

First. The parties were living in a house owned by the petitioner at Hasbrouck Heights in this state, and on the morning of August 18, 1908, the defendant went for a visit to her parents in New York City with their two children; the petitioner accompanying them. Before starting, and on the way to New York, they quarreled about money matters. They had had repeated disputes about money, and the petitioner was shown to have been a miserly and penurious man. His income was small, to be sure, and that was a reason for economy, but not for the penuriousness in which he indulged and which amounted to considerable privation to his wife and children.

On cross-examination the defendant was asked what were her real reasons for deserting the petitioner, and she answered that it was because he refused to give her money that he should have given her to run the house with, and his general continued unkind treatment. At an interview with her husband, at her father's house in New York, she agreed to return to him only upon condition that she should have $30 a month to run the house with, and that they were to occupy separate rooms. She asserted that from the time she made those conditions to the time of giving her testimony her mind on that subject had not changed. She only paid one visit to the Hasbrouck Heights house after she went to her father's in 1908, and that was not to live with her husband but to take her furniture and belongings away. On the occasion of the petitioner being at the defendant's father's house her father told the petitioner that if his wife returned to him they would have to occupy separate rooms, and the defendant in her testimony said that that was the first that was said about separate rooms.

The defendant testified that her husband would not agree to the conditions, and that her father then asked her to state her decision, and she asked the petitioner if he had changed his idea as to how she should run the house, and he said, "No." She then asked him if he would continue to carry the money for the running of the house, and he said, "Yes"; and she asked if she was not to have any if she went back, and if he was to continue to buy the things and pay the bills, and he said, "Yes"; he thought he could do it more economically than she could, and she said she would not return under those conditions; and she added that if he changed and she went back still they would occupy separate rooms.

It should be stated that the defendant's refusal to occupy the same room with her husband was because she suspected him of having some sort of venereal disease, although she admits she did not accuse him of it while living with him. It was only brought to his attention by her father at the interview just...