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Matias v. Matias

Decided: November 6, 1961.

VIRGINIA ARROYO MATIAS, PLAINTIFF-APPELLANT,
v.
RAMON MATIAS, DEFENDANT-RESPONDENT



Conford, Freund and Labrecque. The opinion of the court was delivered by Freund, J.A.D.

Freund

Plaintiff appeals from a dismissal of her complaint for divorce on grounds of desertion. Matias v. Matias , 65 N.J. Super. 291 (Ch. Div. 1960). The proceeding was uncontested, as is this appeal.

The parties were married in Puerto Rico on June 1, 1948, and lived with the husband's mother there for three years. There were two children born of the marriage. On October 28, 1951 defendant packed his clothes and said, "I am going to New York." His wife asked him the reason, and he stated, "Because I don't want to live with you any longer: I leave you and I leave my parents." While still in Puerto Rico, plaintiff wrote her husband asking him to return, but to no avail. In 1954, and for three years thereafter, plaintiff lived at the home of her mother and brother in Bayamon, Puerto Rico. In the same year plaintiff instituted proceedings in a Puerto Rican court, under the Uniform Reciprocal Enforcement of Support Act, and a New York court ordered defendant to pay $10 per week for the support of his family.

On February 8, 1957 plaintiff, with her children, came to live at her sister's home in Hoboken, N.J. and has continued to remain there. In May 1959 she applied to the Hudson County Juvenile and Domestic Relations Court, apparently under our Uniform Desertion and Nonsupport Act, N.J.S. 2A:100-1 et seq. , and a New York court again ordered defendant to pay $25 per week for the support of his family. Plaintiff testified that she did not want her husband to leave her. Since he left her in Puerto Rico, she has never resumed cohabitation with him, nor has he made any attempt to resume living with her. The wife continues to have custody of their two children. On April 4, 1960 plaintiff filed her present suit for divorce on the grounds of desertion.

Plaintiff's testimony was corroborated in all respects.

At the conclusion of the hearing, the trial judge stated that the evidence supported the plaintiff's corroborated testimony that defendant had told her to remain in Puerto Rico and not to accompany him to New York; that this was

contrary to her wishes; and that she had implored him to return to Puerto Rico. The judge further stated that "[T]here is no question that the defendant's abandonment is continuous for a period of upwards of nine years." However, he denied the judgment sought for the expressed reason that: "[T]he law of Puerto Rico as to desertion as a ground for divorce is not the same as that of New Jersey. The requirement of our statute that the desertion be willful, obstinate and continuous for two years is absent from their law." It was consequently the court's conclusion that no jurisdiction could be found in the statute relied on by plaintiff, N.J.S. 2A:34-10 (2), which reads as follows:

"When, since the cause of action arose, either party has become, and for at least 2 years next preceding the commencement of the action has continued to be, a bona fide resident of this state; provided the cause of action alleged was recognized in the jurisdiction in which such party resided at the time the cause of action arose, as a ground for the same relief asked for in the action in this state."

Of the numerous grounds for divorce in Puerto Rico, the one closest to the ground of desertion prescribed in our statute, is 31 L.P.R.A. ยง 321. It provides, among the grounds of divorce: "Abandonment of the wife by the husband or of the husband by the wife, for a longer period of time than one year."

The question of domicile is not in issue. Nevertheless, our statute requires that either party must be a bona fide resident of this State for at least two years preceding the commencement of the action. Within the meaning of the statute, a bona fide resident is anyone actually domiciled within this State. Voss v. Voss , 5 N.J. 402, 406 (1950); Gosschalk v. Gosschalk , 48 N.J. Super. 566, 572-573 (App. Div. 1958), affirmed 28 N.J. 73 (1958). Although a wife formerly could not have a domicile apart from her husband, now she may acquire one elsewhere by her husband's consent manifested by his abandonment. Shepherd v. Ward , 5 N.J. 92, 106 (1950). Since the court found that "on February 8, 1957 plaintiff came to Hoboken, New Jersey to live with her children," there was established the fact that

the plaintiff became a New Jersey resident and since she continued so to be for more than two years prior to the institution of this suit, our courts have acquired jurisdiction under the provisions of N.J.S. 2A:34-10 (2). Furthermore, we have examined the full trial transcript and we are fully satisfied therefrom that it was established that plaintiff was deserted by defendant and that such desertion was willful, continuous and obstinate for more than the two-year period within the substantive requirements of our statute, N.J.S. 2A:34-2 (b). If there is any doubt as to whether the trial judge ...


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