Opinion
06-11-1894
JONES v. JONES.
John W. Bissel, for petitioner. George J. McEwen, for defendant.
(Syllabus by the Court.)
Bill by John Jones against Agnes Jones for divorce. Dismissed.
John W. Bissel, for petitioner. George J. McEwen, for defendant.
GREEN, V. C. The petition in this case was filed by the husband against the wife for divorce on the ground of her willful, continued, and obstinate desertion. The answer of the wife, after admitting the marriage, and that she left the residence of petitioner at the time alleged, seeks to excuse her act on the ground of his cruel and inhuman treatment, and failure to properly provide for his family. She denies that she deserted the petitioner, and charges that she was driven away from his house by his cruelty, which she alleges made it dangerous for her to remain with him. She further answers that she separated from her husband under and by virtue of a decree of separation made in the supreme court of New York on the 6th day of June, 1890, in an action brought by her against the petitioner, a copy of which she annexes to and makes a part of the answer; and says that she now is, and since June 6, 1890, has been, living separate from her husband, under the said decree, which she avers is a decree of a court of competent jurisdiction, having jurisdiction both of plaintiff and defendant. There is no dispute but that the defendant left the matrimonial home. If she was not at the time legally absolved from her duties as a wife, it was desertion on her part, unless she was justified, by his conduct, in so doing. The latter depends not only on whether she had good reasons to leave, but whether she did in fact leave for such cause. The first inquiry, then, is, why did she leave her home? She now says, on account of her husband's cruelty. There is but one well-defined charge of personal violence made, and much confusion exists as to its date. At first it was sworn to as having taken place on Saturday, February 28, 1891. Maud Jones, the daughter, testified that this was the date; but Jones, who is a locomotive engineer, is shown to have been on the railroad at that time. The defendant then says that the occurrence took place on Friday, the 27th. The difficulty is said to have taken place in the morning; some one says after the breakfast things had been cleaned up,—about 10 o'clock. If so, Maud, the daughter, was at school. A neighbor (Mrs. Humblebie) says that the difficulty was two months before the defendant left her home. If that is the occasion complained of, it could scarcely be said to be the cause for the desertion. The defendant, the day after she left her home, applied to a justice for a warrant for the arrest of her husband on the ground of nonsupport, but was told by him he could only issue one on the application of the overseer of the poor, but that he could issue a warrant for assault, and she then made a complaint to that effect. To another justice she said she had no complaint to make for violence, but that she would not live with him if he was the last man on earth. I am forced to the conclusion that, if this alleged assault took place, it was not the cause of the defendant's leaving her home, but that she left for an entirely different reason.Her mother, Mrs. Bodine, had lived with them, and Jones had determined that she must go elsewhere. He so informed Mrs. Bodine; and told his wife, when he went away to his work on Monday morning, that she must be prepared to move on Tuesday to a house he had rented, which was known as the "Grandin House," and also that her mother could not go with them to live there. Defendant, her mother, and daughter, after his departure, made their preparations for moving. They rented another house, and moved into it, and when Jones returned he found his home deserted, and household goods gone. On the next day he went to see his wife, and asked her if she would come back, to which she replied, "No." He met with the same refusal the next day. She would not recognize him when they met upon the street. Maud, the daughter, states the reason for their leaving home to have been a determination on the part of her mother not to live in the Grandin house, which her father had rented, and her mother's dissatisfaction with the provision Jones made for his family. Defendant made the charge in her answer that Jones denied them the actual necessaries of life, but abandoned the charge on the trial. These charges seem to me to have been made to conceal the real reason of the separation, namely, because Jones had determined that his mother-in-law should no longer make one of the household; and the defendant, on being forced to make a choice between her mother and her husband, decided to go with the former, under the idea that she could make her husband support her while living separate, and with this in view sought out the justice the next day after leaving; and it was only after hearing that application for support must be made through the overseer of the poor that she made the charge of cruelty. Jones several times besought her to return to her home, and she refused, and I should have no hesitation in advising a decree for divorce in his favor were it not for the defense which the wife interposes of a judgment of separation entered in the supreme court of the state of New York. That judgment was entered in the supreme court June 6, 1890, in the suit of Agnes Jones against John Jones, and, after reciting the proceedings in the cause, by which it appears that Jones appeared in the action, and answered in the cause, and that the issues were tried, it proceeds as follows: "It is ordered, adjudged, and decreed as follows: That the plaintiff in this action, to wit, Agnes Jones, and John Jones, be, and they are hereby, separated from bed and board forever." This judgment unquestionably released Mrs. Jones from her duty as a wife to live with her husband, and her separation from him cannot be called in law a desertion, if the decree continues operative and effective.
The petitioner's counsel claims that the subsequent reconciliation of the parties has the effect of nullifying the judgment. The return of Mrs. Jones to her husband was voluntary. There was no element of fraud, deceit, or misrepresentation on his part. She came, and he received her, and they lived together as man and wife for some time. What effect has this conduct on the judgment, so far as their marital duty of living together is concerned? It is not now necessary, and it is not intended, to pass on the effect of this reconciliation as a waiver of alimony granted by the judgment, but simply whether this voluntary reconciliation and return to cohabitation by the wife destroys the warrant and judgment of the court that she may live separate and apart from her husband. This is a judgment of a court having jurisdiction of the parties and of the subject-matter. It is final and conclusive between the parties until it is regularly made nugatory. Not only by the constitution of the United States has this judgment the same force and effect in New Jersey that it has in New York, where it was rendered, but by general law such judgment is conclusive between the parties in all countries. Bish. Mar. Div. & Sep. §§ 1580, 1590. The New York Code of Civil Procedure (section 1762) provides that for certain specified causes "an action may be maintained by husband or wife, against the other party to the marriage, to procure a judgment separating the parties from bed and board forever, or for a limited time." Section 1767 is as follows: "Upon the joint application of the parties, accompanied with satisfactory evidence of their reconciliation, a judgment for a separation forever, or for a limited period, rendered as prescribed in this article, may be revoked, at any time, by the court which rendered it, subject to such regulations as the court thinks fit to impose." The contention of petitioner's counsel is that the reconciliation of the parties of itself nullified the judgment of the New York court. There is authority to be found for this position in some text-books and in expressions in the opinions of judges in the cases cited as authorities therefor. Stew. Mar. & Div. § 431, note 6; 5 Am. & Eng. Enc. Law, p. 840, note 9. Bishop, in his first edition, was quite as positive, but in 2 Mar., Div. & Sep. § 1676, it is stated with a qualification as to the form of the decree entered, and the effect of statutes. An examination of the cases and the reasons for their decision, however, demonstrates that the rule as it may exist elsewhere can have no application to such a divorce granted in the state of New York under its law. It is true that in England, as the ecclesiastical law was before the separation of the colonies, reconciliation of itself annulled a decree a mensa et thoro; but the decree itself declared the separation to be only until the parties were reconciled. Its terms were "donee et quousque duxerint invicem reconciliandos." It was operative, therefore, only until reconciliation, by its own terms. By the Pennsylvania statute it is enacted that in certaincases it shall be lawful for the court of common pleas to grant the wife a divorce from bed and board, "which shall continue until a reconciliation shall take place." Brightly, Purd. Dig. tit. "Divorce," pp. 616, 617, pl. 25. Under article 149 of the Civil Code of Louisiana, which provides "that the action of separation shall be extinguished by the reconciliation of the parties," it was held that, if a reconciliation takes place after the decree of separation, the judgment is a nullity. Liddell's Case, 22 La. Ann. 9. Under the form of the decree in England, and under the statute of Pennsylvania and the Civil Code of Louisiana, the cases cited in the above text-books as authority for the position that reconciliation of itself annuls a decree of separation are of no assistance to us in considering the effect of simple reconciliation on a New York judgment of separation from bed and board forever. The Maryland and Massachusetts cases cited by the authors in support of the position are all cases with reference to property rights.
The effect of a decree of separation from bed and board is peculiar. It does not dissolve the marriage relation. No new ceremony of marriage is necessary to reunite the parties. American Legion v. Smith, 45 N. J. Eq. 409, 17 Atl. 770. It merely suspends the mutual rights and obligations of association and cohabitation, relieving the wife from the common-law subserviency to the husband's will, and reviving in her certain powers, dormant during coverture, necessary for her protection during separation; but, independent of statutory provisions, it does not affect the marriage property rights of the parties, or their estates dependent upon coverture, and the survivor is entitled to dower or curtesy on the death of the other. From this it is evident that the incidental declarations of judges as to the effect of reconciliation on the decree itself in suits involving the respective property rights of the parties can have no controlling force. In Kriger v. Day, 2 Pick. 316, the question was whether, under the Massachusetts statute, the wife divorced from bed and board, was restored to all her lands, including those alienated by the husband during coverture without her consent; and it was held she was. In Dean v. Richmond, 5 Pick. 461, the two questions were: First, whether a wife divorced from bed and board could sue or be sued as a feme sole for property conveyed or debts contracted by her subsequent to the decree, and it was held she could; and, second, whether, under the then Massachusetts statute, the court could, by its decree, restore to the wife the personal property which belonged to her at the time of the marriage, and it was held it could not. Hokamp v. Hagaman, 36 Md. 511, was this: The wife obtained a divorce a mensa et thoro, and the decree also provided, in accordance with an agreement of the parties through their solicitors, that the husband should pay the wife a certain sum in full for alimony, and should free him from any obligation to contribute to her support in the future, and should release all claim on her part for dower or thirds in any property then held or afterwards acquired. The money was paid by the husband. They afterwards were twice reconciled and separated, when the husband died, leaving a will, making no mention of the wife. He left neither child, parent, brother, nor sister. The widow claimed the whole personal estate after the payment of debts. Held, that the decree did not dissolve the relation of husband and wife, and could not deprive the widow of her dower, or of a reasonable part of the personal estate of her husband; and, as he left no child, she was entitled, according to the principle of the common law, to one-half of his personal estate after payment of debts and funeral charges. We therefore get but little, if any, assistance from the cases cited in the text-books in support of the proposition.
Chancellor Kent, in the case of Barerre v. Barerre, 4 Johns. Ch. 187, at page 191, refers to the form of the decree in England and other countries. He says, however, in substance, that the law of New York had given the court of chancery power to decree a separation from bed and board forever or for a limited time, as should seem just and reasonable; and, considering the dangers and evils of such divorce for a definite time, and recognizing that opportunities should be left open for reconciliation, decided that the most kind and salutary course would be to declare the separation perpetual, with the power, how ever, reserved to the parties to come together, under the sanction of the court, whenever they should find it to be their mutual and voluntary disposition. It is assumed that this decision led to the enactment of the law in keeping with the suggestion, and which provision was retained in the New York statutes from at least 1828 until its incorporation in the Code of Civil Procedure as above referred to. In this way a departure was made in New York from the form of the English decree that the parties were separated until a reconciliation to the law that the separation should be perpetual, or for a definite period, with the power reserved to the parties to come together, under the sanction of the court, whenever it was their mutual and voluntary disposition. The statutes of New York having prescribed a method by which the judgment of separation is to be annulled, such procedure becomes exclusive, and must be followed, in order to accomplish that end. The enactment of the statute changed the policy of the law. It substituted for the mere act of the parties the approving action of the court. I find no warrant for the position assumed by counsel that by the common law as in force in New York a reconciliation by act of the parties annulled a decree of separation, and that the statuteand Code did not disturb this rule, but only provided a cumulative remedy. So far as the court of chancery of England had exercised jurisdiction over marriages which were void on the ground of fraud and duress, the court of chancery of New York acquired like jurisdiction by the law which conferred on it the same powers possessed by the court of chancery of England; but the law of England concerning divorce and matrimonial causes, as the same was administered in the ecclesiastical courts of that country, was never adopted as a part of the law of the colony, and therefore did not become a part of the law of the state of New York at the time of its separation from the mother country. Perry v. Perry, 2 Paige, 501-504; Burtis v. Burtis, Hopk. Ch. 557. I am therefore of opinion that the reconciliation of these parties did not annul the judgment of separation, and that the defendant had a right to avail herself of its provisions in defense of the charge made against her of willful, continued, and obstinate desertion. I am forced to the conclusion that the petition must be dismissed.