Summary
In Richman v. Richman, supra, the only question involved was whether or not a wife living apart from her husband, with his acquiescence, was entitled to file a bill for separate maintenance.
Summary of this case from Harrington v. HarringtonOpinion
Decided February 3d 1941.
1. The separate maintenance statute ( R.S. 2:50-39) was intended to afford a direct remedy to a wife living apart from her husband with his consent or acquiescence.
2. The husband's legal duty to support his wife does not cease by reason of her absence from his home at his instance or with his consent. It is only when he desires her presence in his home that her presence in that home can be made a condition precedent to his obligation of support.
3. As between husband and wife, undivorced, the Court of Chancery must derive its sole authority to decree maintenance and support from the statute dealing with separate maintenance. R.S. 2:50-39.
4. From the evidence it clearly appears that the wife left the defendant husband and has remained away from him with his acquiescence and at his desire, and that at the time of the filing of the bill the defendant was not suitably supporting her. Complainant was therefore justified in filing her bill and is entitled to a decree for a reasonable and proper allowance for her support and maintenance.
On appeal from a decree of the Court of Chancery advised by Advisory Master Herr, who filed the following opinion:
"The complainant left the marital home taking with her the child of the marriage and has been living separate and apart from her husband. She sought to prove that she was justified in leaving the defendant on account of his extreme cruelty.
"In my judgment, it is unnecessary to determine from the great mass of conflicting evidence in the case whether or not the defendant was guilty of such extreme cruelty as would have justified complainant in seeking a divorce from him and therefore constituted sufficient justification for her leaving him, because it clearly appears that it was with his acquiescence and at his desire that she left him and has remained away from him. The credible evidence, in my judgment, leads to the conclusion that for some time prior to the separation the defendant wanted to rid himself of the complainant, but to do so in such a way as to place the blame for the separation upon her shoulders. Both before and after the separation his attitude and conduct toward her were inconsistent with any desire on his part to keep her with him or to induce her to return to him.
"In Weigand v. Weigand, 41 N.J. Eq. 202, 209; 3 Atl. Rep. 699; affirmed, 42 N.J. Eq. 699; 11 Atl. Rep. 112, Vice-Chancellor Van Fleet held that the purpose of our separate maintenance statute ( R.S. 2:50-39) `is to make the right of the wife to support more secure than it was at common law, by giving her a remedy, whenever her husband fails to perform his legal duty, directly against him, instead of leaving her right in that respect to be wrought out, as it has to be at common law, through a third person. And, in my judgment, the statute should be construed to give a wife a right of action against her husband, whenever she separates from him under such circumstances as will enable a third person to maintain an action against him for necessaries furnished to her.' The Court of Errors and Appeals unanimously affirmed the Vice-Chancellor in this conclusion ( 42 N.J. Eq. 699; 11 Atl. Rep. 112).
"In Dummer v. Dummer, 41 Atl. Rep. 149, 150, the Court of Errors and Appeals again expressly approved of the rule, quoting the language of Vice-Chancellor Van Fleet in the Weigand Case, and added: `This doctrine is also very clearly enunciated by Mr. Justice Depue in his opinion in Vusler v. Cox, 53 N.J. Law 516; 22 Atl. Rep. 347, accompanied by an ample citation of the cases.'
"And see Baumgarten v. Baumgarten, 107 N.J. Eq. 274, 280; 151 Atl. Rep. 606.
"At common law the husband was liable for the support of his wife while they lived apart with his consent. Buttlar v. Buttlar, 57 N.J. Eq. 645, 656; 42 Atl. Rep. 755; Aspinwall v. Aspinwall, 49 N.J. Eq. 302, 303; 24 Atl. Rep. 926; Vusler v. Cox, 53 N.J. Law 516, 518; 22 Atl. Rep. 347; Emery v. Neighbour, 7 N.J. Law 142; Nurse v. Craig, 2 B. P. ( N.R.) 148, 152; 127 Eng. Reprint 581.
"That the separate maintenance statute was intended to afford a direct remedy to a wife living apart from her husband with his consent or acquiescence, is apparent from the opening words of the statute itself: `In case a husband, without any justifiable cause, shall abandon his wife or separate himself from her,c.' (Italics mine.) Why the addition of the disjunctive phrase if abandonment alone (in the narrow sense of desertion) was intended? The statute expressly enacts that `during the time such maintenance shall be allowed by the decree or order of the court, the husband shall not be chargeable with her debts,' thereby disclosing an intent to permit the substitution of the statutory remedy in place of the common law action whenever the latter will lie.
"The Court of Errors and Appeals in the case of Barefoot v. Barefoot, 83 N.J. Eq. 685; 93 Atl. Rep. 192, affirmed this court in granting temporary maintenance to a wife whose husband had consented to her departure from the matrimonial domicil. In its opinion the Court of Errors and Appeals said: `(The husband's) legal duty to support his wife does not cease by reason of her absence from his home at his instance or with his consent. It is only when he desires her presence in his home that her presence in that home can be made a condition precedent to his obligation of support. Until it is made to appear that the wife's absence from her husband's home is without the husband's co-operation or consent or is against his will, the issue as to whether the husband has by his conduct sacrificed his right to her presence in his home is not a live issue * * *. Should he in good faith seek her return, it may afford a ground for terminating alimony pendente lite, but until such time his failure to support her is an abandonment within the purview of our statute, in the absence of evidence that her original departure from his home or her continued absence has been under circumstances and of a nature to relieve him of the obligation of seeking her return. * * * When a wife resides away from her husband with his consent the husband's obligation to support her continues.'
"In Segal v. Segal, 104 N.J. Eq. 457; 146 Atl. Rep. 189, where the husband had separated himself from his wife with her consent and thereafter made no bona fide efforts to effect a reconciliation, the Court of Errors and Appeals held that his leaving, although with the consent of his wife, did not absolve him from his common law duty to support her, and in the absence of bona fide overtures on his part to seek her return his failure to maintain and provide for her entitled her to a decree for separate maintenance.
"According to the above-cited decisions of the Court of Errors and Appeals, the offense described in our separate maintenance statute consists essentially in the husband's failure or refusal to maintain and provide for his wife as long as he is under the common law duty to do so. If he consents to the separation, or acquiesces therein, he remains liable for his wife's support. The law favors the continued cohabitation of the parties, and the husband's consent to separation is not to be deemed justifiable cause for such separation, nor does the wife's consent thereto absolve the husband from his common law duty to maintain her.
"In the case of Aiosa v. Aiosa, 119 N.J. Eq. 385; 183 Atl. Rep. 219, the parties were living separate and apart by mutual agreement. The Court of Errors and Appeals, in reversing this court's decree for the specific performance of an agreement for the wife's maintenance, held that alimony (separate maintenance) is a matter for this court to deal with, and not for the parties to settle by agreement between themselves. Since the parties were living separate by mutual agreement, the only relief available to the wife in this court (aside from the specific enforcement of the agreement itself) was by decree for separate maintenance. The court cited its earlier decision in Second National Bank of Paterson v. Curie, 116 N.J. Eq. 101; 172 Atl. Rep. 560, a case in which the parties had likewise consented, calling attention to the holding in that case that such agreements are `subject to the control of the Court of Chancery, but not by way of specific performance.' In the Curie Case the court said: `We take the view that the agreement in these aspects was in essence and purpose an agreement for the reasonable and suitable support of the wife according to her station and according to her husband's means and ability to support her, and that it comes therefore under the general class of agreements for maintenance where husband and wife are living apart and, as such, is subject to the control of the Court of Chancery, but not by way of specific performance,' and this language was quoted by the same court in Phillips v. Phillips, 119 N.J. Eq. 462; 182 Atl. Rep. 220, infra.
"There is no authority in the Court of Chancery to deal with these matters except by statute. Hervey v. Hervey ( Court of Errors and Appeals, 1898), 56 N.J. Eq. 424; 39 Atl. Rep. 762; Anon. ( 1873), 24 N.J. Eq. 19, 24; Freund v. Freund, 71 N.J. Eq. 524, 529; 63 Atl. Rep. 756; affirmed, 72 N.J. Eq. 943; 73 Atl. Rep. 1117. Hence as between husband and wife, undivorced, this court must derive its sole authority to decree maintenance and support from the section of our statute which deals with separate maintenance. It is under this section, therefore, that the matter of the wife's support `is subject to the control of the Court of Chancery,' in the words of the Court of Errors and Appeals. And this view was reaffirmed by that court in Phillips v. Phillips, 119 N.J. Eq. 462; 183 Atl. Rep. 220, another case in which the parties were separated by consent and in which that court reiterated its pronouncement in the Curie Case, that an agreement for support between husband and wife living apart by mutual consent comes `under the general class of agreements for maintenance where husband and wife are living apart and, as such, is subject to the control of the Court of Chancery, but not by way of specific performance.'
"The evidence discloses that as of the date of the filing of the bill defendant was not suitably supporting complainant. He did therefore `refuse or neglect to maintain and provide for her.' O'Brien v. O'Brien, 49 N.J. Eq. 436; 23 Atl. Rep. 1073. And see Dinnebeil v. Dinnebeil, 109 N.J. Eq. 594, 601; 158 Atl. Rep. 475; Calabrese v. Calabrese, 104 N.J. Eq. 450; 146 Atl. Rep. 330; Mackay v. Mackay, 83 N.J. Eq. 650; 91 Atl. Rep. 316; Hollingshead v. Hollingshead, 91 N.J. Eq. 261, 279; 110 Atl. Rep. 19.
"Complainant was therefore justified in filing her bill, and is entitled to a decree for a reasonable and proper allowance for her support and maintenance."
Mr. Reuben P. Goldstein ( Mr. Maurice C. Brigadier, of counsel), for the appellant.
Messrs. Levenson, Comen Levenson, for the respondent.
The decree appealed from will be affirmed, for the reasons stated in the opinion of Advisory Master Herr in the Court of Chancery.
For affirmance — DONGES, PERSKIE, PORTER, DEAR, WELLS, WOLFSKEIL, HAGUE, JJ. 7.
For reversal — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, HEHER, RAFFERTY, JJ. 6.