On appeal from the former Court of Chancery.
For affirmance in part and reversal in part -- Chief Justice Vanderbilt, and Justices Case, Heher, Wachenfeld, Burling and Ackerson. The opinion of the court was delivered by Burling, J.
This is an appeal from a decree of the former Court of Chancery granting a divorce to the respondent, Edward A. Brown, and dismissing a counterclaim of the appellant, Lillian Brown. Both petition and counter-claim were based upon simple desertion.
The parties were married on April 18, 1943, and were separated in July, 1944, the exact date not being definitely established. No children were born of the marriage.
While there is testimony of discord between the parties almost from the day of the marriage, the culmination of the
difficulties occurred during an argument in the latter part of July, 1944, during which respondent alleges that appellant threatened to poison him and to "knock" him in the head during his sleep. Respondent thereupon left the home and went to live in a room at his place of business. Significantly, he returned to the home several times a week for the purpose of bathing and obtaining a change of clothing. On November 14, 1944, the respondent, with his nephew and another employee, went to the home but were unable to enter because appellant had changed the locks. After ringing and knocking, the appellant appeared and upon inquiry from respondent as to why the locks had been changed informed him "This is not your house. You don't live here any more." Respondent then entered the house and a scuffle ensued. The story of the incident varies widely in its details as related by the parties but the result was that both parties suffered.
Following the incident of November 14, 1944, the appellant made a criminal charge against respondent for the alleged assault and further charged him with nonsupport in the Essex County Juvenile and Domestic Relations Court. She also filed a bill for separate maintenance in the Court of Chancery. These charges were not prosecuted and all were dismissed.
Save for the incident of November 14, 1944, there is no corroboration of respondent's allegations. In this respect what was said by Mr. Justice Oliphant, speaking for this court in Pfeiffer v. Pfeiffer, 1 N.J. 55, 61 A.2d 736, 767 (Sup. Ct. 1948), is applicable to and dispositive of the instant case: "A divorce is never granted on the unsupported testimony of the complaining party. McShane v. McShane, 45 N.J. Eq. 341, 19 A. 465 (E. & A. 1888); Hague v. Hague, 85 N.J. Eq. 537, 96 A. 579 (E. & A. 1915). The public policy of this state is to preserve the marital status from dissolution by means of either uncorroborated or collusive testimony." We do not find the requisite corroboration in respondent's case and accordingly conclude that it was error to award him a decree.
The petition in the instant case charges simple desertion in that appellant is alleged to have willfully, continuedly
and obstinately deserted respondent for more than two years. This he did not prove. He did, however, attempt to show extreme cruelty of appellant as justifying his quitting the family domicile. As the Court of Chancery, during its existence, repeatedly pointed out, the facts establishing a constructive desertion must be pleaded with particularity. Vide: Succhierelli v. Succhierelli, 101 N.J. Eq. 30 (Ch. 1927); Smithkin v. Smithkin, 62 N.J. Eq. 161 (Ch. 1901); Herr, Marriage, Divorce and Separation in New Jersey (1938), Vol. 1, p. 269. The reasons for this rule are succinctly and accurately stated in Smithkin v. Smithkin, supra:
At page 163: "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. This case is an instance, for the petitioner swore that he had asked his wife to return to him, and such a request was in direct ...