Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.
In this separate maintenance action the husband seeks a review of the pendente lite allowance of maintenance, suit moneys and counsel fees.
The parties were married on April 18, 1949, it being the second marriage for each of them. They were along in years at the time; she was 67 and he 64 years of age when the suit was brought.
They lived together until February 13, 1953, at which time the wife left the husband. And to quote her counsel's concession, "there appears to have been no justifiable cause" therefor. On leaving, she took with her $1,500 from a bank account which the husband had established in both names but with his money. He asserted in his affidavit that it was his money and her affidavit does not dispute the statement.
In June 1953 the husband sued the wife for divorce in Florida, charging extreme cruelty. She engaged counsel there and filed an answer denying the charge, whereupon he withdrew the action.
The residence of the parties seems to have been in New Jersey, and apparently after the Florida divorce skirmish they continued to live here. On December 18, 1953, the defendant says in his affidavit that in order to avoid unpleasantness he agreed to pay his wife $20 weekly and he paid this sum regularly thereafter until the incident about to be described.
Nashman filed a joint income tax return for the year 1953. All of the income reported therein represented his earnings and the tax was paid by him. However, he made an overpayment and a refund in the amount of $215.84 was sent to him by the Government in the form of a check dated April 15, 1954, drawn to himself and his wife. He endorsed the check, added a money order for $4.16 and sent both to her, stating in his letter that the total sum of $220 was to pay the support of $20 weekly for 11 weeks in advance. On May 17, 1954, without explanation, she returned the check unendorsed and the money order, saying through her attorney
that she "will expect her regular weekly payments of $20 for her support and maintenance as heretofore." According to the husband's affidavit, he has been unable to cash the refund check since then. Upon this happening, Nashman ceased paying the $20 weekly and on July 23, 1954 his wife signed the affidavit attached to the complaint in this proceeding. If she had cashed the check and money order, his payments would have been current at that time.
The theory of the wife's suit is that even though she left her spouse without justifiable cause, when he began to pay her $20 weekly about ten months thereafter, his action constituted a consent in law to the separation. The result of this implied consent, she claims, was to impose the duty of support upon him and when he ceased paying her under the circumstances stated, he became guilty of abandonment and failure of support within the contemplation of the statute. N.J.S. 2 A:34-24 (formerly R.S. 2:50-39).
A wife's duty is to live with her husband and to give him her society, companionship and services. If she leaves him she does so at her peril, for that conduct is justified only when he is guilty of a matrimonial offense such as would constitute ground for divorce. O'Brien v. O'Brien , 103 N.J. Eq. 214 (Ch. 1928), affirmed 105 N.J. Eq. 250 (E. & A. 1929); 10 N.J. Practice (Herr, Marriage, Divorce and Separation) , § 312 (1950). A departure by a wife unsupported in this way deprives her of any right to support. Turney v. Nooney , 21 N.J. Super. 522, 526 (App. Div. 1952); Danzi v. Danzi , 142 N.J. Eq. 662 (E. & A. 1948); O'Brien v. O'Brien, supra; Suydam v. Suydam , 79 N.J. Eq. 144 (Ch. 1911).
It is true, however, that when a wife separates from her husband with his consent or at his suggestion his duty to support her continues. Armour v. Armour , 135 N.J. Eq. 47, 52 (E. & A. 1944). The wife here takes hold of this principle and says that even though she left her husband, his act ten months thereafter in agreeing ...