Eastwood, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D. Francis, J.A.D. (dissenting).
The parties to this litigation are of the approximate age of three score years and ten. They were married on September 19, 1906. Four sons were born of the marriage. Discord terminated the marital cohabitation of the parties in August 1931 since which time they have had separate abodes.
Mr. Stultz was initially engaged in the manufacture of artificial ice in Keyport, New Jersey, which successful enterprise he sold in 1927 to the Seaboard Ice Company. He then conducted in Keyport a coal and feed business which was incorporated in New Jersey in 1930 under the title Louis Stultz, Jr., Inc. The company, enlarging its trade to include the sale of fuel oil and oil burners, continues in business under the management of the four sons.
It seems evident that Mr. Stultz has been regarded as a sagacious businessman. During a span of 31 years he served as a director and as chairman of the board of the Peoples National Bank of Keyport, and during a period of 22 years as a director of the Borough Building and Loan Association of Keyport and Matawan, New Jersey, of which he was also an officer for 12 years. He was a member of the Keyport Yacht Club. To him boating and fishing have been recreational pleasures. We allude to those activities of Mr. Stultz because we shall have occasion to refer to them again in our review of this case.
Let us turn over the next leaf of the story and speak of the situation Mrs. Stultz has occupied. She has been supported and maintained ever since the separation in 1931 by Mr. Stultz. She has continued to occupy the residential
property at No. 155 Division Street, Keyport. Indeed, in 1933 Mr. Stultz vested in her by deed a life estate in that property with remainder in the four sons. Her practice was to forward the bill for any indebtedness she contracted and wished Mr. Stultz to pay, to his business office. All such have always been paid by Mr. Stultz. She has regularly received from him an allowance of $30 a week which some time ago was increased to $35. During the more than a score of years that have elapsed since 1931 it is not apparent that she has complained to Mr. Stultz or to her sons of a lack of adequate support and maintenance. Throughout those years Mr. and Mrs. Stultz have never conversed.
Mr. Stultz resolved to retire from his business routine and on April 5, 1950 transferred sufficient shares of stock in the corporation to vest in his four sons the ownership of 94 shares of the 100 shares of capital stock of the corporation, retaining only six shares for himself. On April 5, 1950 in a contemporaneous agreement with his sons reciting that in making the assignment of stock he desires to make provision for the continued support and maintenance of his wife, the sons contractually obligate themselves to pay Mrs. Stultz "the sum of Thirty-five ($35.00) Dollars per week for and during" her natural life "for her maintenance and support," and additionally to pay "all amounts due on account of medical, hospital or professional nursing expenses that may be necessary in the event of any illness" of Mrs. Stultz, and furthermore to pay "all amounts due for taxes, assessments heat, water charges, telephone charges and insurance premiums on both real and personal property, and all amounts due on account of repairs and improvements to the real property of" Mrs. Stultz "at No. 155 Division Street" in Keyport. Thus Mr. Stultz caused Mrs. Stultz' bread to be buttered on both sides. At the trial Mrs. Stultz frankly acknowledged that the sons had never declined to pay any bill that she had presented to them.
Early in December 1951 Mr. Stultz visited his brother and sister-in-law who resided in St. Petersburg, Florida. Both the brother and his wife were in an incapacitating state of
health and in financial need. They owned the home in which they were residing. Having remained in Florida for some few weeks, Mr. Stultz resolved to acquire the ownership of the home subject to a life estate therein to be retained by his brother and sister-in-law and make the house in St. Petersburg, which was adequate to accommodate all of them, his permanent residence. The conveyance bears date February 5, 1952.
The uninterrupted tranquility in the solitary relations between Mr. and Mrs. Stultz continued as theretofore until in May 1952 when for some reason Mr. Stultz commenced an action for divorce on the ground of extreme cruelty in the Circuit Court of Pinellas County, Florida, and formal notice of its institution came to Mrs. Stultz. She caused an answer to be filed in the cause on her behalf.
On August 1, 1952 Mrs. Stultz instituted the present action in this court praying judgment: (1) that the defendant be enjoined from the further prosecution of the divorce action in the Florida court or any other action for the dissolution of the marriage elsewhere than in the State of New Jersey, and (2) that the defendant be compelled to provide her with suitable support and maintenance and incidentally fees for her counsel. The defendant was served personally with process in this State. Judgment was rendered in her favor on both counts and a counsel fee of $1,000 awarded. We review the judgment on the defendant's appeal.
It will be expedient for us first to express our opinion concerning the count for maintenance. This alleged cause of action was unwarranted, unproved, and profitless. In the suit of a wife for separate maintenance under the statute there must be proof that the husband has refused or neglected to maintain and provide for her. R.S. 2:50-39, as amended in 1948, now N.J.S. 2 A:34-24; Dinnebeil v. Dinnebeil , 109 N.J. Eq. 594 (E. & A. 1932).
The only deprivation of which the plaintiff was mindful at the trial was her lack of automotive local transportation
which occasioned her dependence upon taxicabs. In contrast are the impressive ...