Jacobs, Donges and Bigelow. The opinion of the court was delivered by Donges, J.A.D.
This appeal is from an order of the Advisory Master granting to the wife pendente lite support, counsel fees and costs.
On April 29, 1949, the plaintiff, Marie Jane Friederich, filed a complaint against her husband, the defendant, for separate maintenance. Simultaneously, she made an application for pendente lite fees and costs. This was denied because the parties were living in the same house and the Advisory Master felt there was no proof that defendant was not maintaining the same for both of them.
Shortly thereafter, plaintiff left the apartment because, as she stated in her supporting affidavit, the defendant made life unbearable. The defendant filed an answer denying the allegations of the complaint and also filed a counterclaim for divorce. Plaintiff then filed an answer denying the allegations of the counterclaim.
Thereafter, plaintiff again made application for pendente lite support and fees. In support of this application she filed an affidavit, in which she states that the defendant ordered her from his bed and refused to continue the marital relationship. She claims she left the apartment on May 20, 1949, because she could not stand her husband's conduct toward her. She also states that although he had previously given her $35 per week for household necessities, he cut this down to $25 on April 26, 1949, and since she moved out, he has refrained from giving her anything. She further states she is ill and cannot work.
The defendant's answering affidavit denies that he ordered her from his bed, but states that she left voluntarily, and, also that she left the apartment voluntarily. He further asserts that plaintiff has approximately $2,200 in the bank in her own name and is, therefore, not destitute. He also states that on April 27, 1949, she withdrew $315 from a bank account in the joint names of plaintiff and defendant. The plaintiff's affidavit does not deny this. Since the husband ceased payments on May 17, 1949, as stated in plaintiff's
affidavit, it is not unlikely that this money was used for her maintenance. In any event, it may be treated on final hearing.
Plaintiff says that this $2,200, which is in her name, was accumulated through the monthly checks she receives from the Government, because her first husband was killed while in the service. She says she is accumulating this money for the benefit of her six-year-old daughter by this former marriage, and, therefore, she is unwilling to use the money for her present purposes. Her affidavit states she is receiving $55.10 monthly from the Government.
The Advisory Master ordered the defendant to pay $25 per week as pendente lite support, and also to pay $150 counsel fees and taxed costs amounting to $60. The defendant appeals from this order.
In order to prevail in a suit for separate maintenance, a wife must show two elements; first that the husband has, without justifiable cause, abandoned her or separated himself from her; second that he has refused or neglected to maintain and provide for her. Dinnebeil v. Dinnebeil , 109 N.J. Eq. 594 (E. & A. 1932). It naturally follows that this rule would be as applicable to preliminary applications as to final hearings. See Acheson v. Acheson , 124 N.J. Eq. 12 (E. & A. 1938).
In the present case there is sufficient proof, by way of affidavit, to find that the defendant had neglected suitably to provide for his wife. Although at first he gave her $35 per week, he reduced this to $25 and has given her nothing since she left. A more difficult question in this case is whether the defendant has abandoned or separated himself from his wife so as to entitle her to the relief she seeks. The plaintiff left her husband. It is the duty of a wife to live with her husband at his home and to give him her services and society. From these obligations she is relieved only if she can show that the conduct of her husband was such as will reasonably convince the court that her life or health was in ...