Conford, J.A.D. (temporarily assigned).
The parties to this action cohabited from the date of their marriage, January 7, 1950, until the plaintiff left the home of the defendant July 7, 1954, assertedly because of his extreme cruelty toward her. She seeks separate maintenance. N.J. S. 2 A:34-24, formerly R.S. 2:50-39, as amended L. 1948, c. 320. The origins and purposes of this statute are detailed in Richman v. Richman , 129 N.J. Eq. 114 (E. & A. 1941).
Ordinarily, a wife who leaves her husband's home for reasons not founded upon conduct by the husband constituting a matrimonial offense sufficient to entitle her to maintain an action for divorce will not be accorded maintenance, as it is the duty of the wife to live with her husband at his home and to give him her services and society. Zehrer v. Zehrer , 5 N.J. 53, 58 (1950); Taylor v. Taylor , 73 N.J. Eq. 745, 750 (E. & A. 1908); Weigel v. Weigel , 132 N.J. Eq. 33 (E. & A. 1942). Plaintiff's action is founded on the thesis that her departure from her husband's home was, indeed, the product of extreme cruelty. I am quite unable to agree.
This was a second marriage for each of the parties. Both had lost previous spouses by death. Plaintiff was 55 and defendant 57 when they married. She had property of her own worth over $30,000 and still retains it. Defendant is an engraver earning approximately $7,500 per year. They seem to have managed tolerably well together except for jealousy by the plaintiff of attentions by the defendant to his adult daughter who lived with them the first few months
and was in close touch with her father after she removed to Rockford, Illinois, and, later, to New Orleans. There were other points of difference but I do not find that the conduct of the defendant, on the whole, can be justly condemned as attaining to extreme cruelty within our cases. He was gruff, indelicate and not too considerate. She was ill-tempered, jealous and demanding. He was hardly more unkind to her than she to him. It was a case of incompatibility, not cruelty. There was no threat to her life, health or ability to discharge her marital duties. McCabe v. McCabe , 129 N.J. Eq. 431 (E. & A. 1941).
Plaintiff's particular reliance is on the events of the evening of July 6, 1954, culminating in her leaving. There is sharp dispute as to the facts. The parties agree they retired at 10:30 P.M. and went to bed together. She claims he struck her in the face, neck and thigh during an argument over his intention to visit his daughter without her and that she arose, dressed and drove away to the home of her sister, stopping en route to show her injuries to the local Dunellen police. His version is that she pestered him to agree to take her to Colorado and that, when he refused, she accused him of wanting to go alone to see his daughter in order to have sexual relations with her; that this resulted in a loud dispute and his retiring to the living room couch, whereupon she dressed and left. He denies he struck her. Her testimony as to that detail suffers from the denial by the police that she showed them any injuries when she complained at police headquarters. From the proofs I doubt whether he struck her. If he did, it was an isolated incident, due, at least in part, to her own provocation, and it does not amount to extreme cruelty. 11 New Jersey Practice (Herr, Marriage, Divorce and Separation) (2 d ed. 1950), § 756, p. 149.
Upon the conclusion of the proofs respecting alleged cruelty the court announced the findings aforestated. Thereupon, at the suggestion of the court, plaintiff moved to amend the complaint to allege, in the alternative, a separation of the parties by consent or acquiescence of the defendant.
The motion was granted, in the interests of substantial justice, pursuant to R.R. 4:15-2, it having been the view of the court that a debatable factual and legal issue was presented, and had actually been tried, as to whether the circumstances attending the separation of the parties and subsequent events did not impose an undischarged obligation on the husband to attempt a bona fide reconciliation, within such cases as Richman v. Richman, supra; Venere v. Venere , 137 N.J. Eq. 526 (E. & A. 1946); Barefoot v. Barefoot , 83 N.J. Eq. 685, 686 (E. & A. 1914); Pierson v. Pierson , 15 N.J. Misc. 117, 127, 189 A. 391 (Ch. 1937); Munger v. Munger , 21 N.J. Super. 49, 52, 53 (Ch. Div. 1952), affirmed, but modified in another respect, in 24 N.J. Super. 574 (App. Div. 1953); see also Dick v. Dick , 11 N.J. Super. 533, 538 (App. Div. 1951). The views which engaged my interest in relation to the issue referred to are typified in the following expression adopted by the Court of Errors and Appeals in the Barefoot case, supra (83 N.J. Eq. , at page 686):
"The law requires a husband to support his wife. It is his right to require her to receive that support in his home as his wife, unless he has lost that right by his conduct; but his 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 of support. Until it is made to appear that the wife's absence from her husband's home is without the husband's co-operation 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. * * *"
I cannot doubt from the proofs in the present case that after the plaintiff departed the home of the defendant neither party manifested any real desire for or bona fide effort at reconciliation. When she returned for some of her effects the next day the defendant had no objection. Later, by arrangement of legal counsel for the parties, she came for her furniture. He permitted it to be removed but did not allow ...