Williams v. Williams

• Decision Date: 21 December 1910
• Citation: 78 A. 693,78 N.J.Eq. 13
• Court: New Jersey Court of Chancery
• Parties: BLANCHE WILLIAMS v. WALTER L. WILLIAMS

78 A. 693

78 N.J.E. 13

WILLIAMS

v. WILLIAMS.

Court of Chancery of New Jersey.

Dec. 21, 1910.

Action by Blanche Williams against Walter L. Williams. Petition dismissed.

James E. Pyle, for petitioner.

PITNEY, C. This is an undefended suit for absolute divorce on the ground of desertion. The special master to whom it was referred reported that the jurisdictional fact of the petitioner's residence in this state during the period of the desertion was not sufficiently proven.

It appears that the parties were married in the city of New York in October, 1904, and resided there until August, 1905, when the defendant went to Panama as a civil engineer. For about a year he wrote to the petitioner frequently, and afterwards occasionally, until the month of February or March, 1907. He returned to New York in May, 1907. Petitioner at this time was living with her parents on Forty-Seventh street in New York City. Defendant called upon her, but did not remain, declaring that he did not want to live with her any more. This declaration was repeated in the presence of petitioner's brother, who endeavored to ascertain from defendant the cause of the difficulty between the parties, and to whom defendant answered that "there was nothing to do about it; that he did not want to live with her." He said they were always quarreling and could not get along together. Defendant returned immediately to Panama. Although the petition avers that the desertion occurred on December 7, 1907, the special master finds (properly, I think), from the evidence of the petitioner, corroborated by that of her brother, that the desertion in fact commenced in the previous May and has been continuous since that time. Petitioner continued to reside in the city of New York until October, 1907, when she came to Jersey City and secured a boarding place with a Mrs. Hammond, who, so far as appears, was previously an entire stranger to the petitioner and her family. While living with Mrs. Hammond, and in the latter part of December, 1907, petitioner received a letter from her husband written in Panama, and dated December 7th, in which he reiterated his purpose to have nothing more to do with her. Petitioner's parents, and all other members of her family, continued to reside in New York until after the commencement of this suit, the petition in which was filed on January 4, 1910. Petitioner was employed as a stenographer in New York City, and remained in this employment until August, 1909, when she gave up her position on account of ill health, continuing however, to board in Jersey City. Her own statement is, when asked what was her object in coming to Jersey City to live: "I had to work for a living, and I thought it was cheaper to board over here and live over here. I also felt discouraged on account of people asking me where my husband was. I have not got a friend in New York now. I gave them all up on account of the disgrace of my husband leaving me. I did not want to meet them." When asked about her arrangements for the future, she replied: "I intend to live in Jersey City." She denied that at the time she came to Jersey City to live she knew anything about the law respecting a divorce on the ground of desertion.

Assuming, but not deciding, that this evidence, if properly corroborated, would show such a residence of the petitioner in this state as would warrant the court in granting a divorce on the ground of desertion, I agree with the special master that there is not sufficient corroboration.

In McShane v. McShane, 45 N. J. Eq. 341, 19 Atl. 465, which arose under the divorce act of 1874 (Revision 1877, p. 314), the advisory master held that "the jurisdictional fact of residence must be duly proved like any other fact in the case. The petitioner's evidence cannot be relied upon exclusively as to the fact of residence. A divorce is never decreed upon the unsupported testimony of the complainant." The decree was unanimously affirmed by the Court of Errors and Appeals for the reasons given by the advisory master.

In Tracy v. Tracy, 60 N. J. Eq. 25, 46 Atl. 657, Vice Chancellor Pitney held in effect that the mere sworn statement of the petitioner as to the animus manendi was not sufficient to establish it in the absence of corroborating circumstances. Upon appeal the decree was reversed, as appears from the opinion of Voorhees, J. (62 N. J. Eq. 807 809, 48 Atl. 533, 534), upon the ground that petitioner's testimony was clear, consistent, and not intrinsically improbable; that it was not contradicted, and was not in any way impeached; and that her testimony was "sufficient after the other testimony produced, under the statute, to establish her residence here, and entitle her to the divorce prayed for."

As I read this opinion, it did not dispense with corroboration, but found corroboration in the other evidence referred to. Tbat this interpretation is correct appears, I think, conclusively from the subsequent decision of the same court in Wallace v. Wallace, 65 N. J. Eq. 359, 54 Atl. 433. In that case, as appears from the report, the special master expressed himself as follows: "Since mere residence, without animus manendi, will not support a divorce suit, the existence of the animus manendi must be proved as fully as other material facts are required to be proved. The sworn statement of the complainant is not enough. It must be corroborated by facts preceding and attending the change of residence." And in support of this proposition he cited the Tracy Case. The court of review, in an opinion by Judge Vroom, expressly approved this declaration by the special master, the language employed being as follows (05 N. J. Eq. 363, 54 Atl. 434): "In the case of Tracy v. Tracy, in this court (62 N. J. Eq. 810 [48 Atl. 533]), the definition of residence is adopted as the place where a person's habitation is fixed, without any intention of removing therefrom, and it was well said by the special master, in his finding in this case, that mere residence, without an animus manendi, will not support a divorce suit, and that the animus manendi must be proved as fully as other material facts are required to be proved." And Judge Vroom's opinion concludes with the statement that the proofs showed that the complainant's residence was acquired with the animus manendi, and that she was corroborated by satisfactory evidence as to her intention to remain permanently in New Jersey.

The importance of the rule requiring such corroboration is manifest when we consider how easily, otherwise, the courts of this state would be imposed upon in "emigrant" divorce cases. Instructive cases are Firth v. Firth, 50 N. J. Eq. 137, 24 Atl. 916; Sweeney v. Sweeney, 62 N. J. Eq. 357, 50 Atl. 785; Grover v. Grover, 63 N. J. Eq. 771,...