Civil action for maintenance.
[21 NJSuper Page 51] This is a suit by the wife against her husband for maintenance. For the purpose of this determination I do not think it is necessary to recite in detail the proofs in this case.
The parties to the action were married in 1920, and lived in the marital domicile in Merchantville, New Jersey until the early part of 1940, when the defendant left the home and resided for a time with a friend, Mr. Wilson. Prior to the date of his leaving in 1940, the unhappy condition of their married life had reached a climax in 1938 when the wife instituted a suit for divorce based on the grounds of desertion and adultery, in which action the husband denied the charges as set forth by the wife and alleged a desertion on her part, and prayed for a divorce in his counterclaim. Although this action was instituted in 1938 both parties continued to reside under the same roof until 1940.
A decree in the divorce suit instituted by Mrs. Munger was entered in August, 1940, dismissing her cause of action, and advising a decree for divorce on the grounds of desertion in behalf of the counterclaimant, Mr. Munger.
In September of 1941, our then Court of Errors and Appeals reversed the decree of the lower court pro tanto , stating that the counterclaim should have been dismissed. Munger v. Munger , 130 N.J. Eq. 279 (E. & A. 1941).
It is at times impossible to ascertain the exact truth in controversies of this nature. In this matter, however, it is admitted that the defendant left the marital home in the early part of 1940, during the pendency of the divorce proceedings instituted by the plaintiff; the plaintiff continued to live in the marital domicile until some time later -- August 1940 -- when she went to California with their son.
Defendant knew that the plaintiff was going to leave the home and go to California during his absence, and it is obvious he made no efforts to dissuade her. On the contrary it is clear that he made it possible for her to leave by paying her transportation. In addition, the defendant admits that he was averse to his wife returning to the home in Merchantville, and although he did not recall whether he was informed that his wife's counsel had requested the right for Mrs. Munger to return to their home, he states in any event he would not have approved of her return.
At common law a husband was liable for the support of his wife while they lived separate and apart with his consent. Buttlar v. Buttlar , 57 N.J. Eq. 645, 656 (E. & A. 1899).
A 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 to support. Until it is made to appear that the wife's absence from her husband's home is without his cooperation 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. When a wife resides away from her husband with his consent his obligation to support her continues. Barefoot v. Barefoot , 83 N.J. Eq. 685 (E. & A. 1914).
The law favors the continued cohabitation of the parties, and the husband's consent to separation is not deemed justifiable cause for such separation; nor does the wife's consent absolve the husband from his common law duty to maintain her. Richman v. Richman , 129 N.J. Eq. 114-117 (E. & A. 1941).
In addition to denying the plaintiff's cause of action the defendant pleads that the plaintiff should in any event fail to succeed: first, because she does not come into court with clean hands, and secondly, because she is guilty of laches.
In an effort to sustain the defense of unclean hands the defendant depends upon an allegation in plaintiff's affidavit of April 15, 1951, in an application for support pendente lite , in which affidavit she stated "the main asset I have is a property in Baltimore, Maryland, which was given me by my father in 1920. Under a trust fund arrangement and under an agreement with the defendant the property was later set up under a ...