Clapp, Francis and Stanton. The opinion of the court was delivered by Francis, J.A.D.
The defendant husband appeals from a judgment awarding his wife separate maintenance.
Some history is necessary in order to present the issues to be considered.
The parties were married on October 4, 1951. Disharmony arose very quickly and on March 8, 1952 they separated physically, although remaining in the same household. On October 14, 1952 the wife sued for separate maintenance alleging refusal on the part of the husband to cohabit with her since on or about March 8, 1952, and a failure to support beginning about June 1, 1952. They were still occupying the same house at this time. The complaint is somewhat inartistically drawn. The thrust of its single count seems to have been to present a case of simple abandonment under the statute, N.J.S.A. 2 A:34-24. However, contained therein were a number of allegations respecting a course of cruelty pursued by the husband down to its filing date. They seem to have been set out in passing and as incidents
of the married life because there was no assertion of any claim of constructive abandonment arising from extreme cruelty. A further example of this running account of the marital troubles appears in the charges relating to failure of support. Although the paragraph charging the statutory abandonment alleges a failure to support adequately as of June 1, 1952, a later paragraph asserts that between June 1 and September 1, 1952 the husband gave the wife $25 per week (a lower amount than had been given previously) and that after about September 15 he gave her no support at all. Such a complaint necessarily caused difficulties for the trial court in pinpointing the exact cause of action relied upon.
In this connection it may be noted that the defendant's answer admitted a refusal to cohabit with plaintiff after March 8, 1952, and alleged as the reason therefor his discovery that her previous divorce was fraudulently obtained, which made his marriage to her a nullity. Moreover, he admitted also in this pleading that for the same reason he had ceased supporting her after the middle of September 1952. In furtherance of these charges an original and amended counterclaim was filed, seeking in one count a divorce on the ground of plaintiff's extreme cruelty and in a second count an annulment because of plaintiff's alleged incapacity to contract the marriage. Incidentally this counterclaim alleged that on account of plaintiff's extreme cruelty he was compelled to separate himself from her on March 8, 1952.
The pretrial order described the plaintiff's action as a simple abandonment and failure to support, the former state arising "in March 1952" and the latter "commencing September 1952."
The action was tried on several days in the latter part of 1953 and in 1954, final judgment being entered on November 15, 1954. Prior to the inception of the trial complete separation of the parties had occurred, the plaintiff having left the marital home on November 21, 1952.
It is not entirely clear from the record of this trial just what use plaintiff intended to make of the charges of cruelty
-- whether the intention was to submit the proof simply as a circumstance or condition tending to corroborate an ordinary statutory abandonment, or whether an incidental motive was to establish also a constructive abandonment based upon extreme cruelty. In any event, although the husband's course of conduct throughout the marriage and down to the wife's departure in November 1952 was shown, the trial court confined the abandonment issue to the date alleged, namely, March 8, 1952. The proof showed a cessation of marital relations as of that time, but it appeared that defendant was physically incapable of engaging in such function because of an infection from which he was suffering. The court felt that under the circumstances the defendant's failure to do so did not constitute abandonment in the statutory sense. So, without passing upon the other element of the cause of action, i.e. , failure of support, and confining himself to the single date of March 8, he found no abandonment as of that date.
The oral opinion and the judgment are important because they make it plain that the adverse result was predicated entirely upon the conclusion that one of the two elements necessary to a cause of action for separate maintenance, that is, an abandonment ...