STEVENSON, V. C.

Bill for divorce by Ada H. Foote against Henry H. Foote. Dismissed.

Cortlandt & Wayne Parker, for complainant. William P. Toler, for defendant

STEVENSON, V. C. 1. While the defendant filed an answer denying the desertion charged against him, and also a cross-billpraying for a divorce on the ground of an alleged desertion of him committed by the complainant, he offered no evidence to sustain either his answer or his crossbill. His counsel, however, cross-examined the two witnesses for the complainant. The complainant's whole case rests upon her own deposition, the deposition of her brother Mr. James S. Henderson, and the letters from the defendant which were admitted or proved. The testimony for the complainant, if the same could be deemed sufficient in amount, does not, in my opinion, exhibit a case of willful, continued, and obstinate desertion on the part of the defendant. The couple were married October 12, 1886. In June, 1891, they broke up housekeeping, and the complainant and her child went to her mother's house, in Elizabeth, N. J., to live, while the defendant went to reside with his mother, in the same city. The separation thus commenced has continued without break until the hearing of the cause. The complainant's bill was filed August 6, 1903, 12 years after the commencement of the separation. After the separation had continued about a year, the defendant, with the knowledge and consent of the complainant, went to Laredo, Tex., to fill the position of manager of an electric light company. The complainant admits that this business arrangement of her husband was not against her will, and that she contemplated joining her husband and living with him again in Texas. The defendant evidently made a failure of his Texas experiment, and in September, 1893, he returned from Texas, and again began to live with his mother, in Elizabeth. For the 10 years preceding the commencement of this suit these parties have been residing on the same street in Elizabeth, within two blocks of each other. The testimony shows that the original separation, in 1891, was not due to any intentional cruelty or ill treatment on the part of the defendant. The resources of the little family gave out. The husband had recently lost a good position in the employ of a firm of bankers in New York City, where he had been earning $2,000 a year. It was necessary to mortgage the wife's property to pay accrued household expenses. The wife, apparently having a small income of her own, took her child and went to live with her mother, while the husband, in his poverty and misfortune, found refuge in his parent's house. The complainant's testimony, although, perhaps, avoiding a complete disclosure of all that she knew on the subject, indicates, and other evidence, I think, warrants the inference, that the loss of the defendant's position in New York and his failure to support his family were due to habits of intoxication which he had contracted. The husband and wife apparently never quarreled. After the separation had endured for a year, I think it is plain that this unfortunate and erring man, probably with the aid of friends, made an effort to make a fresh start in a new place, and accordingly went to Texas and engaged in the business above mentioned in a comparatively small town. The complainant testified that when the defendant left for Texas he was in good spirits, and that she anticipated that he would succeed, and that she would join him there. A series of affectionate letters were written by the defendant to the complainant during the first months of his stay in Texas, and then the correspondence ceases. The reasons of the failure of the defendant's experiment in Texas we are left to surmise. After his return in 1893 to his mother's house, in Elizabeth, a number of interviews took place between himself and his wife, and some communications passed between them. These interviews and communications seem to have ceased about the year 1897. The complainant's brother testified that at different times, and particularly during the four or five years preceding his (the brother's) examination as a witness in this case, he had seen the defendant intoxicated on the street. Both counsel, in argument, refer to the significant fact indicated, if not proved, by the testimony, that the defendant had recently taken the "Keeley Cure" at White Plains, N. Y. The defendant's affidavit of noncollusion annexed to his crossbill was taken before a notary public at White Plains, N. Y., on January 14, 1904.

It is hardly necessary to say that habitual drunkenness is not a cause of absolute divorce in New Jersey, even when the effect of such drunkenness is to justify the wife in separating herself from her husband. Nor is failure to support a wife, resulting from habitual drunkenness, a cause of divorce in this state. The doctrine of constructive desertion has not been extended so as to reach these classes of cases, which in other states are recognized as proper ones to call for the remedy of divorce. The failure of the husband to support the wife, growing out of his habitual drunkenness, may justify the wife in leaving him, and prevent the separation so caused from being charged against her as a willful, continued, and obstinate desertion, but it does not follow that in such a case the husband is guilty of such desertion. In all the long story of separation which the complainant tells, and in all these letters to her from the defendant, I fail to find any indication that the defendant intentionally separated himself from his wife, or intentionally produced the conditions which compelled such separation. The defendant appears to have loved his wife. I do not think that the proofs show that he ever addressed a word to her, except in kindness. He fully recognized that he had grossly failed in the discharge of his duty to his wife, and that he stood in need of her forgiveness. Although the complainant had some means, she seems to have preferred not to share with her husband the discomfortand misery of a drunkard's home. As between such a home and a home with her mother, she made a very natural choice. Although the husband and wife were separated, in my judgment there was no willful and obstinate desertion committed by either. When the husband endeavored to make a new start and went to Texas, both husband and wife were planning that when he had succeeded in his new life of industry and sobriety they would live together again in the husband's new and distant home. There is no suggestion that the husband did not embark in this Texas enterprise in absolute good faith, and that the six or eight affectionate letters which he wrote during the first two months of his stay in Texas do not make a truthful disclosure of his mind and feelings towards his absent wife. No reason for the sudden termination of the husband's letters is suggested by the testimony, except the same reason which indirectly caused the original separation in 1891. That same cause of separation and estrangement continued to operate after the husband's return to Elizabeth in 1893, and presumably kept the couple apart for the 10 years which followed, and which ended with the husband in the "Keeley Cure" at White Plains. In Laing v. Laing, 21 N. J. Eq. 218, Chancellor Zabriskie, in defining "constructive desertion," includes only cases in which "the husband treats his wife with such cruelty or violence that she is obliged to leave him for safety or to avoid personal injury." "But," the learned chancellor adds (page 249), "if she leaves him because he is intemperate, improvident, fails to support her, or because his bad temper or intemperance makes her home disagreeable, this is not a desertion on his part. Habitual drunkenness is not, in this state, a ground of divorce. It would become such, substantially, if the doctrine would be established that a wife might leave her husband for it, and then have a divorce on the ground that he deserted her." In Palmer v. Palmer, 22 N. J. Eq. 88, the same chancellor formulates a similar definition of "constructive desertion," but admits that there may be cases "where a willful and malicious refusal by a husband to permit a wife who is discharging her own duties to share with him such means of support as he may have, may be held to be an expulsion from his house, and constitute a desertion." Skean v. Skean, 33 N. J. Eq. 148; McVickar v. McVickar, 46 N. J. Eq. 490, 19 Atl. 249, 19 Am. St Rep. 422; Lister v. Lister, 65 N. J. Eq. 110, 55 Atl. 1093. The plain distinction between a willful withholding of support by the husband from the wife, the necessary effect of which is to compel her to seek support away from him, and the habitual drunkenness of the husband, which renders him unable to furnish support to his wife, and thus becomes the indirect cause of her separation from him, prevents, I think, the definition of "constructive desertion" from being extended so as to make habitual drunkenness leading to nonsupport practically a cause of divorce under our statute.

It may be argued that where the wife is wholly dependent for support upon the earnings of the husband, and the husband allows himself to become an habitual drunkard, so as to deprive him of his power to earn a sufficient support for himself and wife, he must be presumed to intend the natural consequence of his conduct, which is the compulsory separation of his wife from him. It may be claimed that in such a case it is not the drunkenness of the husband which is the cause of divorce, but the constructive desertion which results from such drunkenness. To extend the doctrine of constructive desertion to such a case, viz., where the wife has no means, and the husband's only means of supporting his wife consist of his earning power, which habitual drunkenness destroys, would, in effect, make habitual drunkenness, where these special conditions exist, practically a cause of divorce in New Jersey. But the complete answer, I think, to the argument suggested above, is that the law of divorce, in defining "desertion," deals with the actual intention of the parties. The desertion must be willful and obstinate, as well as continued. It is notorious that drunkards generally do not in fact intend the consequences of misery and sorrow from which their families suffer. In this present case there is nothing to show that the defendant for the 10 years prior to the commencement of this suit was not from time to time struggling to reform, and hoping to re-establish his home. There is no evidence that the failure of the defendant to support his family, if such failure in fact compelled the complainant to separate herself from him, was at any time within his purpose or intention. The evidence indicates that the defendant desired to live with his wife and support her, but could not resist the appetite for strong drink, which rendered the discharge of his duty to his wife and child practically impossible.

Apart altogether from the foregoing considerations, I think there is a feature of this case which would prevent any possible extension of the doctrine of constructive desertion from being applied to it. The evidence quite strongly points to the conclusion that the original separation in 1891 was not forced upon the complainant. The complainant's testimony as to the cause of this original separation is meager. She says that in June, 1891, they "broke up housekeeping"; that, finding out that the defendant "was in debt and had no money," she mortgaged her house for $1,000, "to relieve him," and, "upon advice," went to her mother, in her country home. This is hardly a description of a wife starved out of her drunken husband's home. It may be that the wife was prudent in leaving her husbandbefore his improvidence had led to the exhaustion of her resources, but by leaving him she protected herself, while she deprived him of the restraint which her personal influence might have exercised upon him. She seems to have left him to his fate—to struggle with his enemy alone. The testimony indicates to my mind not that the complainant was forced away from the defendant by his failure to support her, but that, "by advice," she consented to a separation at least until the defendant could get employment, and again from his own means provide and maintain a suitable home for his family. If the defendant at any time thereafter had in fact become capable of providing a home and support for his wife, and had willfully refused to do his duty in that regard, it may be that a constructive desertion might be established against him. But there is no evidence that the defendant at any time after his failure in Texas became capable of supporting his wife. On the contrary, the evidence strongly indicates that his habits of intoxication grew upon him from year to year, until when this suit was commenced he had reached the stage of chronic alcoholism which calls for the application of the "Keeley Cure." Without, therefore, distinguishing between the intended and the unintended results of a husband's habits of intoxication in a case like this, the indications are that the original separation of these parties was established by consent, and that the complainant did not desire to return to her husband unless he could reform his habits, and render himself able as well as willing to maintain a suitable home for her and her child, and that the husband never thereafter had the means to supply such a home.

2. If there is any view of the evidence in this case which will support a charge of constructive desertion, no such charge is set forth in the bill of complaint. In Smithkin v. Smithkin, 62 N. J. Eq. 161, 49 Atl. 815, Vice Chancellor Reed says (page 163, 62 N. J. Eq., and page 816, 49 Atl.): "I am of the opinion that, when a divorce is asked for on the ground of desertion arising from the compelled absence of the petitioner by reason of the extreme cruelty of the respondent, the facts should be so charged in the bill or petition. The issue to be tried in such a case would be the fact and the degree of the respondent's cruelty, and the respondent is entitled to be informed of the issue to be tried, and to answer the acts charged. The case of an ordinary desertion and one such as we are considering radically differ. The proof offered in support of each differ. The proof offered in support of the former would often refute the existence of the latter." The foregoing views seem to apply with equal force to every form of constructive desertion. The principle laid down is that the facts which are to be deemed as causing "the compelled absence of the petitioner" must be set forth so as to constitute the charge which the defendant is to meet. It is certainly a very remarkable circumstance that the complainant, in her elaborate and argumentative pleadings, refrains from disclosing the fact that the defendant was addicted to drink.

3. The whole charge of desertion rests upon the uncorroborated testimony of the com plainant. The letters of the defendant certainly do not help out the complainant's case. There is not a word in all these letters written by the defendant which indicates an intention to desert his wife, or an intention to cause his wife to separate herself from him. The testimony of Mr. Henderson, the complainant's brother, only "proves the continuance of the separation, but not that the original separation was a desertion." See Corder v. Corder (N. J. Ch.) 59 Atl. 309. The fact of the defendant's repeated intoxication after the separation began, which was testified to by Mr. Henderson, plainly does not supply the necessary corroboratory evidence. A woman cannot get a divorce by swearing to a constructive desertion resulting indirectly from her husband's habitual drunkenness, and then producing a witness to testify that long after the separation her husband was, from time to time, seen drunk on the streets. The corroboration must be of the account which the complainant gives of the "causes of separation"—of the characteristics of the separation which show it to have been a willful, continued, and obstinate desertion. McShane v. McShane, 45 N. J. Eq. 341, 19 Atl. 465; Costill v. Costill, 47 N. J. Eq. 346, 21 Atl. 35.

4. It may be urged that the inference that the drunkenness of the complainant was the indirect cause of the separation which took place in the spring of 1891 is not warranted by the evidence. The direct testimony on this subject is certainly meager. On the direct examination the complainant was asked what were the defendant's "habits as a man of sobriety." Her answer was, "He was a man who did use intoxicating drinks," and she stated that she knew it, but the defendant "didn't show it particularly." On cross-examination the complainant's testimony was as follows: "Q. Did he drink during your married life? A. Yes. Q. To excess? A. Well, he would drink in the evening. Q. Didn't you know he has been afflicted with drunkenness for years? A. No. * * * Q. Do you know that by reason of drink he has been without any work, except for short intervals in the Journal, which is owned by his mother? A. No; I don't know that. Q. Do you know he lost that position by reason of drink, and has taken the cure at White Plains? A. No. Q. Never heard of it? A. No. Q. Do you know, Mrs. Foote, that his mother has supported him for all these years, and that he has never been able to support himself? A. No." The brother of the complaint,who was a witness, testified that the defendant "used" intoxicating liquors, but knew "nothing whatever of his habits personally." He admitted, however, that he had seen the defendant intoxicated on the street "half a dozen times in ten years." Counsel for the defendant, in his brief, refers to the significant cross-examination above set forth as the admission of the defendant "in the evidence that the defendant had been a slave to drink, and had taken the cure at White Plains." In the elaborate brief for the complainant no charge or admission is made that the original separation of the parties resulted directly or indirectly from the defendant's habits of intoxication. The defendant is alleged to have been "habituated more or less to the use of liquor; sometimes intoxicated"; and statements made by the defendant's solicitor in relation to the defendant's having been "afflicted with drunkenness for years," and having been sent to the Keeley Cure at White Plains, are pointed out in this brief "as the strongest evidence" as to the defendant's "ill habits." This brief also states as a fact that the defendant had at last resorted to the Keeley Cure. The impression derived from the whole testimony in this cause is that the complainant was keeping back information which she might have given, which would have made it plain whether or not in 1891 the defendant had become addicted to habits of intoxication which destroyed or greatly impaired his earning power. When this subject is presented to her mind both upon her direct and her cross examination, in her answers she is extremely guarded, and avoids describing the degree to which the defendant had become addicted to drink. After avoiding opportunities to state whether the defendant was a drunkard or not, she evades the direct question whether he drank "to excess." In the state of the proofs above set forth, it may be necessary to consider how this case would stand if it must be deemed that the evidence is insufficient to warrant the inference that the habitual drunkenness on the part of the defendant brought about the original separation which occurred in June, 1891. With such an assumption, it is difficult to avoid the conclusion that the complainant has refrained from testifying to facts which would explain the cause and character of a separation which without such explanation is certainly involved in mystery. The defendant, from the present point of view, appears to be a man of "great intelligence and a very clever accountant"; a man of good health and of good education, who had risen in the employ of a banking firm until he was earning $2,000 a year. His general moral character is not questioned. He is a member of the church. This man manifests no feeling toward his wife and child but kindness and affection. He has in some way failed in his duty to his wife, for which he recognizes that he needs her forgiveness, and the forgiveness which he seeks is for some sin of omission. After the separation has endured for over two years, the defendant writes to his wife, from Texas; notifying her that he is coming home, stating that he wanted complainant's forgiveness, begging her to write to him, and referring to the sight of his wife and child as the one thing which would make him happy in all his "misfortune and suffering." It is noticeable that the complainant, in her direct examination, admitted that she wrote no reply to this letter, failed to produce it, but described it as merely stating that the defendant "was coming on." The letter itself, which was thus misdescribed, was afterwards forced from the complainant on cross-examination. Through all the communication and interviews which followed the defendant's return to Elizabeth in 1893 until 1897, when there appears to have been an entire cessation of intercourse between these parties, the defendant manifests his strong affection for his wife, and his desire to be restored to her favor, while at the same time he plainly admits that, for some reason not stated, he stands in need of her forgiveness.

If we exclude from consideration the theory of habitual drunkenness as the origin of this separation in 1891, and the cause of the continuance of that separation, the conduct of this married couple certainly is inexplicable, according to the ordinary standards of human nature, in the light of the evidence which has been produced. It is almost impossible to avoid the inference that the true cause of this separation has been concealed. Such concealment, in divorce cases founded upon alleged desertion, is frequently made. But if the complainant has not kept back any explanatory evidence; if the picture which she presents of her married life, and then of her separation from her husband, is reasonably complete, and we must attribute the separation to an unaccountable and unnatural desire of the defendant to desert his wife and child, and deem all his manifestations of affection for his wife and child insincere—I think the case is still subject to the fatal objection that the "causes of separation" stand proved by the complainant's testimony alone. Whatever theory may be adopted as to the causes of separation, that theory must be deduced from the complainant's testimony without the aid of corroborative testimony. The corroborative evidence which has been offered does not extend to the essential elements of the matrimonial offense of desertion defined by our statute.

The bill will be dismissed.