CAROLINE LEWIS v. WILLIAM LEWIS.  [6 New Jersey Equity 22 (1846)]

 

[Reporter’s Summary:]

 

1. What is not a desertion, under the act concerning divorces.

 

2. A wife cannot convert a husband's not contributing to the support of the family into a desertion on his part, by removing to another place and taking board and refusing to receive him.

 

The petitioner states that the marriage between her and the defendant took place in London, July 22d, 1834; that the peti­tioner resided in London at the time of the marriage. That shortly after the marriage her husband and she removed to Liverpool, where they lived about eleven month, when he left for America. That, about a year after, she followed him to America, and lived with him in New York for about four years; since which she has lived in Morristown, in this state, for nearly six years, without enjoying the society and support of her hus­band, though her removal to at residence at Morristown were in compliance with his wishes, and for the purpose of enabling her better to support herself and children by her own individ­ual exertions, which her husband had wholly neglected to do. That she has four children, the eldest nearly eleven, and the youngest nearly six. That since the year 1837, she has been compelled, by her own exertions, to support herself and children. The ground on which a divorce is asked is, continued willful and obstinate desertion for upwards of five years‑-i.e., since Feb­ruary, 1841.

 

Mary Barrett testifies that she went to live with the parties, as nurse, in New York, about ten years ago. That for some time after she commenced living with them, the defendant made some provision for the support of the family, but that for some years before she left New York for Morristown, with the peti­tioner, he ceased to make any provision for the family. That during this time, he was idling away his time and showed no concern about providing for his family. He was roving around; she does not know what he was about. That he was no advantage to the family, but a great annoyance to them. That he lived in this way three or four years before petitioner moved to Morristown. The design in moving to Morristown was to be able better to support herself and children, by teaching music. Since the petitioner has lived in Morristown, the defendant has not lived in Morristown, or made any provision for the support of the family, but has lived a roving, vagabond life, traveling about, south and west. His habits were apparently slothful. The petitioner moved to Morristown in February, 1841, since which time the defendant has made no provision whatever for his family. He deserted his house and roved about the country. He was generally slovenly in his personal appearance, and showed evidence of his being idle. During all the time peti­tioner has lived in Morristown, and for some years previous, she has wholly provided for herself and children; having re­ceived no assistance from her husband; having provided a place of living for herself and children, and lived separate from her husband. That she, the witness, has lived with the petitioner for the last ten years, up to April, 1846.

 

John I. Cooper testifies that be has known the petitioner five years, since February, 1841. She came from New York to Morristown to reside, at that time, and made an agreement with witness to board with him, with her nurse and four child­ren. She continued with him three years and better. He took it that she supported herself. He never received anything for her board except from herself. She appeared to support her­self by teaching music. No provision, that he knows of, was made for her by her husband. From what he knows of him and his habits, witness don't think he was in a situation to aid her. Witness never knew him to be in any business.  He was here at Morristown, at different times, a year apart. The last time witness saw him here, he said he had been off to Georgia and Cincinnati. During the whole time petitioner has lived here, up to this, day, she has lived in the condition of a woman unprovided for and deserted by her husband.

 

J. W. Miller, Esq., of Morristown, testifies to the irre­proachable character of the petitioner. That since she came to Morristown, she has supported herself and family by teaching music. That her husband, during the time she has lived in Morristown, has, to witness' knowledge and belief, furnished her with no means of support. Witness has seen him here several times, since the petitioner lived here.  His only object in coming here, as witness learned from him and petitioner, was to get money from her, which she had earned by her exertions. From what witness knows of petitioner's husband and has seen of him, and from the reputation he bears, witness considers him as an idle, worthless man, pursuing no regular business, leading a wandering life, and that the petitioner's connection with him is a great detriment to herself and children. That during the whole time the petitioner has resided in Morristown, she has lived in the condition of a woman unprovided for and deserted by her Husband.  Witness believes that the petitioner's comfort and happiness, and the welfare and education of her children, would be greatly promoted by being divorced from her husband.

 

Ann E. Lery, a sister of the petitioner, testifies that she was present at the marriage; that it took place in London, in July, 1834. That witness came to America four years ago, and, shortly after her arrival, met the defendant in the street, in New York, when he immediately asked her for some money, though appearing in perfect health and able to support himself. When witness inquired of him why he deserted his wife and children and made no provision for their support, and reminded him of his good circumstances and business when they were married, he replied that he never intended to support them; that he meant, at the time of the marriage, to have his wife make a living for himself and family by teaching music. That this conversation has been repeated since. From these con­versations, witness learned that the defendant had made no pro­vision whatever for his family during the whole time be had been in America, as well as from the statements of her sister, the petitioner. When witness arrived in America, the peti­tioner was living in Morristown, teaching music for the support of herself and children; the defendant was not living with his wife, and witness understood from him that he had not so lived for two or three years before. When witness met and conversed with defendant, as above stated, on her arrival in America, it was in the city of New York, where the defendant said he lived apart from his wife, saying that he had not lived with her for a long time. Witness has frequently visited Morris­town and stayed with her said sister; that the defendant has wholly deserted and failed to make any provision for her and her children. The defendant would sometimes attempt to ex­tort money from his wife, and collect her bills, and take away her property, and did so a number of times, greatly harass­ing his wife, and often writing abusive letters to her; but he never sent any means of support to his wife and children, but left them wholly to be provided for by his wife. That defend­ant is entirely indolent in his habits, and leads a roving, vaga­bond life, spending his time in the south or west; and, from information witness has received, he is now roving in Ohio and Kentucky, following a theatrical company. Witness regards him as having wholly deserted his wife, and that he will never hereafter live with her and make provision for the support of her and her children.

 

THE CHANCELLOR. The evidence in this ease, though en­tirely ex parte, does not, as it seems to me, make out a case of desertion, within either the letter or spirit of our statute. Desertion, to be a cause of divorce, must be a willful, continued and obstinate desertion for five years. In this case, the parties were married in London, in July; 1834. Shortly after their marriage, they removed to Liverpool, where they lived about eleven months, when the husband came to America. In about a year the petitioner came to this country, and they lived together in the city of New York, till February, 1841.  The petitioner states that, for the first year after she came to this country, he contributed partially to the support of the family, out of funds then in his hands; but that, since the year 1837, she has been compelled by her own exertions to support herself and children, he having never done any business since he ar­rived in America. The petitioner states that her removal to Morristown and residence there were in compliance with his wishes, and for the purpose of enabling her better to support herself and children by her own exertions. It is not shown, either by the petition or proofs, whether he went with her when she went to Morristown. The witness Cooper states that she came to Morristown in February, 1841, and made an agree­ment with him to board with him, with her nurse and four chil­dren. Whether he went with her or not, when she first went to Morristown, it is clear that her going there with his consent and for the purpose stated, was not a desertion on his part. She had supported herself and him and the children, for some time before she left New York; and she went to Morristown to obtain a better support, the petition says, in compliance with his wishes.

 

Was it understood between them that he was to go to Morris­town too, or was it agreed between them than he was to remain in New York, or go elsewhere, and support himself? Was he to visit her at Morristown, or did she forbid his visiting her there ? There is nothing to show that there was anything like desertion on his part when she left New York for Morristown. Has anything since occurred amounting to a desertion on his part? The testimony shows he has been at Morristown several times since she went there; and it does not tell us whether she received him, or refused to receive him, because he was in no business, or was idle, and contributed nothing to her support or that of the children. Was that a desertion on his part? The same kind of desertion had taken place before she left New York; for he had not contributed to the support of the family for some time before that. A wife cannot convert a husband's not contributing to the support of a family into a desertion on his part, by removing to another place and taking board and refusing to receive him there. The case seems to be nothing more nor less than an application by the wife for a divorce on the ground that the husband is idle, and contributes nothing to her support or that of the children, and that she is obliged to support herself and them, and is unwilling that her earnings should support him.

It seems to me it would be a dangerous precedent to decree a divorce in this case.  The prayer of the petitioner is therefore denied.