On appeal from the Appellate Division of the Superior Court, whose opinion is reported in 6 N.J. Super. 155.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Wachenfeld and Ackerson. For reversal in part and affirmance in part -- Justices Heher, Oliphant and Burling. The opinion of the court was delivered by Ackerson, J.
This is an appeal from a judgment of the Appellate Division of the Superior Court (one judge dissenting) affirming a judgment of the Chancery Division of that court in a maintenance action pursuant to R.S. 2:50-39, in which the defendant was ordered to pay to his wife, the plaintiff, $50 weekly for her support (with counsel fees and costs) and the defendant's counterclaim for divorce on the ground of desertion was dismissed.
The parties were married in 1920 and lived together in Perth Amboy until 1944. On June 29th of that year the plaintiff left her husband and went to live with her sister. They have one child, a married son, with whom plaintiff now resides.
The complaint herein is grounded on the theory of constructive abandonment by the defendant because of his extreme cruelty alleged to consist principally in his adulterous conduct with other women, particularly with one Sophie Terpanick, and in telling plaintiff that he was having sexual relations
with this woman and that there was nothing plaintiff could do about it. In addition it is alleged that defendant openly and publicly consorted with his paramour in and about Perth Amboy and other public places; that he refused to cohabit with the plaintiff; refused to take his meals at home; refused to support her, and by reason of said acts of extreme cruelty her life and health were endangered and her life made one of such extreme discomfort and wretchedness as to incapacitate her to discharge her duties as a wife.
The defendant filed a general denial to these charges and counterclaimed for divorce on the ground of desertion.
Several questions are presented on this appeal. The defendant contends that his wife failed to prove a case entitling her to separate maintenance. It is argued that none of the allegations of misconduct were proven and that he has not refused nor neglected to provide for her. In particular, the husband maintains that there is no proof of his adultery with the other woman and that the plaintiff's testimony in this regard is without foundation and uncorroborated. It is further insisted that even if plaintiff can be believed, the evidence does not show extreme cruelty on the part of the husband.
Addressing ourselves to these questions, we note that the jurisdiction of the Chancery Division of the Superior Court to award separate maintenance is statutory and governed by R.S. 2:50-39, derived from Section 26 of the Divorce Act (P.L. 1907, c. 216, p. 482). In an action brought pursuant to this statute, the wife must show the concurrence of two causes: (1) that the husband had abandoned or separated himself from her without justifiable cause, and (2) that he has refused or neglected to suitably maintain and provide for her. Venere v. Venere, 137 N.J. Eq. 526 (E. & A. 1945); Danzi v. Danzi, 142 Id. 662 (E. & A. 1948).
The abandonment contemplated is that of the husband, but where the husband is guilty of such cruel treatment that the wife is compelled to leave him, their separation is considered by the law as a constructive abandonment by him. Fallon v. Fallon, 111 N.J. Eq. 512, 515 (E. & A. 1932);
Lister v. Lister, 65 Id. 109 (Ch. 1903); affirmed, 66 Id. 434 (E. & A. 1903). It is generally held that the extreme cruelty which will justify the separation of the wife from her husband must be such cruel conduct as endangers the life or health of the wife, or renders her life of such extreme discomfort or wretchedness as to incapacitate her to discharge the duties of a wife, or that the conduct of the husband, if continued, would have brought about these conditions. Personal violence is not the only form of extreme cruelty which will entitle a wife to separate from her husband. Taylor v. Taylor, 73 N.J. ...