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Urian v. Urian

Decided: August 23, 1954.


Eastwood, Freund and Francis. The opinion of the court was delivered by Francis, J.A.D.


In this matrimonial cause the wife sought a judgment of separate maintenance. A counterclaim was filed by the husband containing two counts, one for a divorce on the ground of desertion, and the other demanding the return of one-half of certain United States Government bonds allegedly owned by them jointly. The trial court gave judgment to the wife, awarded $35 weekly for her support and a counsel fee of $500 and dismissed both counts of the counterclaim. The husband appeals.

The wife's complaint is lengthy and contains an elaborate recitation of facts relating to the marital discord. It charges the husband with an abandonment without justifiable cause in June 1935 and a failure to support. Then it alleges a

resumption of cohabitation six months later and that about September 1941 Urian commenced a course of detailed cruel and inhuman treatment of her which continued until April 1942, when he again abandoned her without justifiable cause and remained away from her until July 1942, at which time he entered military service for a period of approximately twenty-seven months. Upon his discharge in August 1945 they resumed living together. However, it is then alleged that in April 1948 the husband resumed his improper treatment and finally "deserted" her in December 1948. During this separation period he removed all his personal belongings from their apartment and took their automobile, which she had gone to work to help pay for. The complaint continues, asserting that the wife made several attempts to induce the husband to return. Among other things she went through a marriage ceremony in the husband's church, the original ceremony having been performed according to her religious faith. Cohabitation was resumed in June 1950.

It is then alleged that in January 1951 the husband again began a course of "extremely cruel and inhuman" treatment toward her, the cruelty being described. In November 1951, after being assaulted and threatened, she left him. With respect to this leaving the allegation is:

"18. By reason of the long course of extremely cruel and inhuman treatment of the plaintiff at the hands of the defendant, the plaintiff's nerves became completely shattered, she became ill and no longer able to fulfill her duties as a wife, and fearing for her health and personal safety she separated herself from the defendant in the month of November 1951 and established her home separate and apart from him. Plaintiff has been in ill health ever since and under the care of a physician, and her health became impaired to such an extent that she became and still is disabled from earning her livelihood.

19. On the 23rd day of September 1952, the plaintiff, believing that separation by her from the defendant for a period of approximately ten months might have worked a change in the attitude of the defendant towards her, sought out the defendant and asked him to effect a reconciliation with her to the end that they resume marital relations. The defendant refused to effect a reconciliation with the plaintiff. He stated to the plaintiff that he preferred living alone without her and that he would not permit her to return to his home."

Additional general allegations of attempts at reconciliation by the wife and refusals by the husband are set forth. Then it is charged that in November 1951 Urian abandoned his wife and failed and refuses to support her.

The husband filed an even more elaborate factually detailed answer which, exclusive of the counterclaim, covers fifteen pages of the appendix. The counterclaim charges a desertion beginning September 1, 1950 based upon an alleged unjustified refusal to have sexual relations with him.

Thereafter an application for maintenance pendente lite was made. Factually detailed affidavits were submitted on both sides in connection therewith.

Among other things the wife's affidavit, after referring to her attempts at reconciliation in September 1952, recited that "My husband abandoned me on the 23rd day of September 1952, without any justifiable cause , and has failed, neglected and refused ever since that time to provide for my support and maintenance."

The husband's affidavit discussed at length the wife's visit to him on September 23, 1952 and denied that a reconciliation was requested by her. He admitted having received a letter from her dated September 26, 1952 pleading for a reconciliation but said in effect that he did not answer because he did not believe it to be sincere. And he denied an abandonment of his wife on September 23, 1952.

Attached to the wife's moving papers was an additional affidavit of an independent witness, a nephew of Mrs. Urian, which asserted that on November 25, 1952, he visited the husband and endeavored to induce a reconciliation but Urian refused.

Reference is made to the incidents of September and November 1952 primarily for the purpose of demonstrating that Urian was aware of the allegations with respect thereto.

The record discloses that a motion by the husband to dismiss the complaint for lack of jurisdiction in the court and for failure to comply with N.J.S. 2 A:34-24 was made returnable on the same day as the pendente lite application.

Apparently this motion was made and denied, although the appendix contains no ...

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