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Gahn v. Gahn

Decided: April 23, 1954.

ROLF E. GAHN, PLAINTIFF,
v.
MILDRED B. GAHN, DEFENDANT



Ewart, J.s.c.

Ewart

[30 NJSuper Page 428] The parties to this suit are husband and wife, having been married November 17, 1923. They cohabited together until on or about May 7, 1938, when the plaintiff husband left home and never returned to live with the defendant. In October 1938 defendant complained against the plaintiff before the Domestic Relations Court at Elizabeth in Union County and as a result of proceedings there had, plaintiff was ordered to pay the defendant $12 per week for her maintenance and support. On March 31, 1941 defendant filed a bill for separate maintenance against the plaintiff in the old Court of Chancery (Docket 135/380), in which suit an order was entered May 20, 1941 directing the defendant (the plaintiff in this suit) to pay his wife $12 per week for her maintenance and support pendente lite , together with a counsel fee of $150 plus costs. That cause was never brought to final hearing. The plaintiff in this suit, defendant in the separate maintenance suit, paid the $12 per week maintenance until his wife, the defendant, was committed to an insane asylum in Delaware in 1948, whereupon it appears he voluntarily increased the payments to $35 a week and continued paying that sum until April of 1952, when he claims to have learned that his wife was possessed of an estate of some $13,000 in her own right, after which he ceased making any further maintenance payments. Plaintiff in the present suit thereupon applied by motion, supported by affidavits for an order to compel the defendant wife to repay to him monies he had theretofore paid her for her maintenance and the wife countered with an application to have her husband adjudged in contempt for failure to continue payment of the maintenance ordered pendente lite in 1941. Those proceedings resulted in an order entered January

5, 1954 denying the husband's application for the order he sought; denying the wife's application to have the defendant husband held in contempt; and dismissing the bill for separate maintenance filed in 1941 with leave to the wife to counterclaim for maintenance in the present divorce suit.

No children were born of the marriage, but the defendant wife has a daughter, Alberta L. Ryan, by a prior marriage, who has been duly appointed guardian ad litem for the defendant in this suit.

February 11, 1953 the husband, plaintiff in the present suit, filed suit for divorce on the ground of constructive desertion based upon the defendant's extreme cruelty beginning immediately after their marriage in 1923 and continuing until May 7, 1938 when he left her. On behalf of the defendant wife, an answer was filed denying the charges set forth in the complaint and pleading as a separate defense laches of the plaintiff. Defendant also counterclaimed charging the plaintiff abandoned her on May 7, 1938 and neglected and refused to support her and demands judgment against the plaintiff for separate maintenance, costs and counsel fees.

This matter came on for hearing at Newark on April 7, 1954. Plaintiff testified in support of the charges in his complaint and called as corroborating witnesses his sister-in-law, Mrs. Ruth Gahn, Theresa R. Naughton, a former employee of his, and Mrs. Ruth Treverrow, a mutual friend of the parties.

It appeared at the hearing that the question of defendant's maintenance in the asylum in Delaware has been satisfactorily provided for by virtue of some agreement in writing entered into between the plaintiff and the hospital authorities. In that posture of affairs, defendant, who was represented by counsel present at the hearing, offered no proofs in support of the answer or in support of the counterclaim nor did defendant's counsel cross-examine the plaintiff's witnesses.

The proofs established and satisfactorily corroborated the essential elements of the complaint, viz. , the marriage, the domicile in New Jersey, and the fact that defendant subjected the plaintiff to a course of abuse, humiliation and cruel treatment over a period of years which adversely affected his

health to a material degree and justified him in having left her on May 7, 1938.

I find from the proofs that plaintiff is entitled to a divorce on the grounds charged in the complaint, unless it be that his long delay in the institution of this suit has worked an estoppel against him by reason of his laches.

He could have instituted suit in 1940 on the same grounds alleged in the complaint, or could have filed a cross-petition for divorce in the maintenance suit in 1941. Instead of doing so, however, he postponed action until February 11, 1953, a delay of more than 12 years. And in the meantime defendant has become mentally incompetent and has been confined in an asylum since 1948.

While mere lapse of time, without more, does not constitute laches, yet a delay for an unreasonable length of time, not satisfactorily explained, coupled with a change in defendant's position by which the defense is prejudiced, works an estoppel against the plaintiff and makes a plea of laches a good bar in defense of the action. Endicott v. Marvel , 81 N.J. Eq. 378 (Ch. 1913); Burke v. Gunther , 128 N.J. Eq. 565 (Ch. 1941); Lang v. Hexter , 137 N.J. Eq. 100, 104 (Ch. 1945), affirmed 138 N.J. Eq. 478 (E. & A. 1946); Reilly v. Griffith , 141 N.J. Eq. 154 ...


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