Tracey v. Tracey

• Decision Date: 15 June 1899
• Citation: 43 A. 713
• Parties: TRACEY v. TRACEY.
• Court: New Jersey Court of Chancery

43 A. 713

TRACEY

v. TRACEY.

Court of Chancery of New Jersey.

June 15, 1899.

(Syllabus by the Court.)

Action by Hugh Tracey against Mary Agnes Tracey for divorce. Judgment for defendant.

The parties in this case resided in Trenton, N. J., and were married in January, 1893, and shortly afterwards began living together at the residence of Mrs. Kelly, the wife's sister. In June, 1893, a quarrel took place between the complainant and Mr. Kelly, in whose house they lived. In consequence of this quarrel Kelly insisted that Tracey, the complainant, should leave his house. In August, 1893, a child of the marriage was born, and at this time the complainant returned to Kelly's house, and stayed with his wife for a few weeks. He then left as he states, because Kelly refused to permit him to stay longer. He claims to have frequently invited his wife, the defendant, to come and live with him, but alleges that she always refused, asserting that she would rather live with her sister, Mrs. Kelly. He admits that he has done little to support his wife or child, having given her but five dollars since he separated from her. He excuses himself for this on the ground that his wife's drinking habits have made her unfit to be trusted with money. The witness whom he calls to substantiate his allegation that he had invited his wife to live with him swears that he never authorized her to tell the wife he would furnish a home for her. This is quite a substantial incident, where the husband did not support his wife, and never had any place of residence or home to which she might go and cohabit with him. There is proof that in 1897 a child of the defendant was born, and of which the complainant was not the father. There is also proof and admission from the complainant himself that he has been convicted of fornication since the marriage.

William M. Jamieson, for complainant.

John A. Montgomery, for defendant.

GREY, V. C. (after stating the facts). The bill in this case prays a divorce a vinculo matrimonii upon the ground of desertion by the defendant wife. Though an answer denying the desertion is filed, the defendant presented no evidence, and resists the prayer of the complainant solely upon the proofs made on his part. The evidence shows undisputably that the parties resided and were married in this state, and have since resided here. They began their married life in the house of Mr. Kelly, the husband of the defendant's sister. Their first separation took place about May 1, 1893, at the end of a three-months residence at the house of Mr. Kelly. It appears to have been occasioned by a quarrel between Kelly and the complainant. Precisely what was the cause of the dispute is not shown, but the indications are that no board was paid. Kelly insisted that the complainant should leave his house; stating that he (Kelly) had supported the defendant before the complainant married her, and could continue to do so. There is no showing that the complainant, during his stay in Kelly's house, paid any board for either himself or his wife. He admits that he has contributed but five dollars to the support of their child. In narrating the quarrel, the complainant states it to have been between himself and Mr. and Mrs. Kelly, and makes no mention of his wife as a participant. Under Kelly's threat that he would "lick" the complainant if he did not go away, the complainant took his belongings and went away from Kelly's house that night, and he does not appear to have told his wife of his preparations to leave. The wife is not shown to have been an actor in any way. Shortly afterwards the complainant requested the defendant to come and live with him, and she refused to leave her sister's house. There is no proof that the complainant had provided any place for the defendant, who had at this time progressed nearly, if not quite, six months in pregnancy. The husband states that he had work at this time, but the character of the evidence as to the husband's providence and care for his wife does not satisfy me that her refusal to leave her sister's house was, under the circumstances, unjustified. The proofs show no quarrel between the husband and wife, no expression of ill feeling for any reason,—simply a refusal by the wife to leave the protection of her sister's house. A few months later (in August, 1803) the child was born, and the complainant, at the invitation of the defendant, came to Kelly's house, and remained for two weeks,—until Kelly sent him a message to leave. The complainant himself swears that there never was "any bad blood" between himself and his wife, except that she refused to live with him, saying she did not like to leave her sister's home. Their separation after the birth of the child had the same characteristics. That the unwillingness of the wife to leave her sister's home at these times was no indication of a purpose to desert her husband is conclusively shown by the husband's own testimony that, about four years before the time at which he was testifying, he had twice had marital intercourse with his wife. This must have been in August, 1894, a year after the birth of the child. So far as the refusals of the wife to leave her sister's house are proven with relation to any date, they are indicated to have been made before August, 1894, when marital intercourse was resumed, as stated. After that period, if any invitation was given...