Young v. Young

• Decision Date: 20 November 1922
• Citation: 119 A. 92
• Parties: YOUNG v. YOUNG.
• Court: New Jersey Supreme Court

119 A. 92

YOUNG

v. YOUNG.

Court of Errors and Appeals of New Jersey.

Nov. 20, 1922.

Appeal from Court of Chancery.

Suit by Samuel E. Young, against Betty Young. Decree for defendant, and plaintiff appeals. Affirmed.

Patrick H. Harding, of Camden, for appellant.

GUMMERE, C. J. Samuel E. Young, the appellant, filed his petition in the Court of Chancery, praying a divorce from his wife, the defendant, upon the ground that:

"During the years 1919 and 1920, and up to and including the 24th day of August, 1920, she committed adultery with one Curtis Allen at Detroit, in the state of Michigan."

No defense was interposed by the wife, and the case was heard ex parte upon the petition and proofs. The evidence disclosed that the petitioner and his wife were married in April, 1910, and that they lived together thereafter in apparent harmony until October, 1917. The petitioner testified:

That in that month "I left my wife for the reason that she was not doing right by me. We had a quarrel over the fact that I was taken ill from eating meat which she cooked. I have not lived with my wife any time since October, 1917, and have had no sexual relations with her since that time."

He further testified that, although he had left his wife and had never returned to her he continued to support her until March, 1920.

To sustain the charge of adultery laid against the wife in the petition, testimony was taken which justified the conclusion that she was living with the correspondent, Allen, as his wife, in the city of Detroit, as early as August, 1920, and that she continued to live with him thereafter until August, 1921. No attempt was made to support the averment that she had committed adultery at any time during the year 1919.

It is evident from the testimony of the petitioner himself that in October, 1917, he deserted his wife without justifiable cause; for it never has been suggested, so far as I know, that dissatisfaction upon the part of the husband with his wife's cooking justifies him in permanently deserting her, even if on one occasion he is made ill from eating food she has prepared. Ills own testimony also shows, not only that he deserted his wife without justifiable cause, but that the desertion was willful, continued, and obstinate for a period of more than two years before the commission of the matrimonial offense by the wife which was charged and proved against her. The question presented for solution, therefore, is whether a husband whose wife is entitled to an absolute divorce from him can succeed in obtaining a divorce from her for a matrimonial offense committed by her after her right to a divorce from him has matured and become fixed.

It was held by the Court of Chancery, in the case of Rapp v. Rapp; 67 N. J. Eq. 236, 58 Atl. 167, that desertion by a husband which has existed during the period fixed by the statute as ground for an absolute divorce is a bar to a divorce against the wife for subsequent adultery; and the authorities cited...