Price, Conford and Gaulkin. The opinion of the court was delivered by Conford, J.A.D.
Plaintiff brought this action on September 13, 1957 in three counts: two for divorce from the defendant on statutory grounds of desertion and adultery, respectively; the third for reparation of the depletion of her separate estate to the extent of $4,680, alleged to have been necessarily expended by the plaintiff from her earnings in self-support after the defendant forced her from their home three years before she instituted the action. The Chancery Division judge held the adultery count sustained by the evidence and granted a judgment nisi on that ground, together with an allowance of alimony in futuro at the rate of $20 per week. He made no factual determination concerning the alleged ejection of the plaintiff from the home by the defendant but found that if this in fact occurred, the event took place in April 1956, which was less than two years prior to the institution of the action, thereby precluding the adjudication of the right to divorce on the ground of desertion, within the requirements of the statute. N.J.S. 2 A:34-2 b.
At a point in the submission of the plaintiff's proofs when it became apparent that she was developing her case on the third count the trial court sustained an objection on behalf of the defendant to any further proofs on the ground that no such cause of action is cognizable in this State. The third count was dismissed as not setting forth a "cause for action."
The Supreme Court denied plaintiff's petition for direct certification of the action of the trial court in the respect last stated. Later this court ordered the cause transmitted here to be dealt with as an appeal in ordinary course on the papers filed in the Supreme Court.
In view of the importance and novel nature of the question involved, and the fact that the defendant filed no brief on appeal, this court after argument directed that a brief amicus curiae be filed by Nathan A. Whitfield, Esq., and this has been done.
The question of law presented by the third count of the complaint is a matter of first-instance consideration insofar as is revealed by our reported New Jersey decisions, although it has had considerable attention elsewhere. It will be useful to outline so much of the factual case developed at the trial as may be material to the cause of action invoked. These parties were married in 1925 and cohabited as husband and wife until April 1956. By that time their two daughters were grown, married and living in their own households. The parties own a two-family home in North Bergen as tenants by the entirety. They resided on the second floor, their older daughter (separated from her husband) occupying the first floor as a tenant. The rental thereof was provided by municipal relief funds which were turned back to the daughter by the mother to enable the daughter to support herself and a small child. Plaintiff has worked as a garment operator for many years. Her rate of pay now and heretofore has been $86 per week gross, $70 "take-home." She is subject, however, to annual lay-off periods of from 14 to 16 weeks. She has no other source of income.
The parties stipulated that defendant (who did not testify in any phase of the case) earned $105 per week gross, $85 "take-home," subject to a three-week annual lay-off.
Until September 1954 the fiscal arrangements of the parties were that defendant turned over all his earnings to plaintiff, retaining $12 weekly as a personal allowance. She paid all of the household and living expenses and the real estate maintenance bills (including those attendant upon a $3,000 summer cottage owned jointly). At that time, however, there was an abrupt change in their relationship. The testimony, partly by the plaintiff and partly by her daughters, is not very clear in respect to dates. Defendant came home late one night and plaintiff reproached him for association with another woman. From then on he discontinued sexual relations with her, saying she should "take care of yourself." "I will take care of myself." They were then occupying separate beds. He also ceased leaving her any money.
In April 1956 there was another altercation over his staying out nights with another woman. He told her to get out of his room, that he had no use for her. She then moved to a hall bedroom, and they have never had marital relations since. It appears that at about that time defendant assumed most of the real estate expenses for the North Bergen property. There is some question as to who paid for repairs. There is no evidence as to what the financial arrangements were concerning meeting the household living expenses. Presumably defendant took care of those personal to himself and plaintiff paid the rest from her earnings.
In August 1957 plaintiff had the police raid a motel rendezvous between defendant and a woman with whom he had been socializing for some years, thereby obtaining the adultery evidence which resulted in the present judgment nisi. In alleged fear of violent reprisal by defendant for the raid plaintiff moved to the first-floor apartment of her daughter immediately thereafter.
When the trial court cut off further direct testimony by plaintiff she was about to respond to a question as to what she expended out of her own income and estate for her support after cessation of support payments by defendant in September 1954. The complaint fixes this amount at the "minimum ...