Goldmann, Foley and Lewis. The opinion of the court was delivered by Foley, J.A.D.
Defendant husband appeals from a judgment nisi , entered in the Chancery Division awarding plaintiff a divorce. The complaint alleged in the statutory language of N.J.S. 2 A:34-2(b), "Willful, continued and obstinate desertion for the term of 2 years." Plainly an allegation of "simple" desertion as distinguished from "constructive" desertion was thereby pleaded. It is now conceded by plaintiff that the proofs did not establish a simple desertion, but it is argued that they amply supported a finding of constructive desertion. Accordingly, plaintiff moves that the pleadings be amended to conform with the proofs; defendant resists this motion.
N.J. Const. Art. VI, § V, par. 3 provides:
"The Supreme Court and the Appellate Division of the Superior Court may exercise such original jurisdiction as may be necessary to the complete determination of any cause on review."
This constitutional provision is implemented by R.R. 1:5-4(a) and R.R. 2:5.
Quite early in the trial of the case, the trial judge inquired of plaintiff's attorney whether he was trying to prove constructive
desertion. When he answered in the affirmative, defendant's attorney objected to proofs which would tend to establish plaintiff's claim on that basis. The court permitted the case to proceed, stating, "Let us see what the proof develops."
Defendant moved for a dismissal at the close of plaintiff's case on the ground that although the complaint alleged simple desertion, the proofs tended to establish constructive desertion. The court again inquired whether plaintiff was proceeding on the theory of a simple desertion or constructive desertion. Her attorney answered, "Simple desertion caused by the defendant telling her to get out." The court then denied the motion but clearly indicated that a prima facie case of constructive desertion had been established. Defendant's attorney then informed the court that he had not come prepared to meet the evidence of constructive desertion, whereupon the court adjourned the matter to enable him to contest this proof. When the trial was resumed the issue of constructive desertion was fully litigated. Under these circumstances we deem it proper that we exercise original jurisdiction in order to completely determine the cause. Accordingly, the motion to amend is granted and we will consider the record de novo in light of the amended pleadings.
The parties were married August 29, 1935 in Stuttgart, Germany, and came to this country in 1936. They settled in Vineland, New Jersey, in 1941 and lived together until June 14, 1956, when they separated under circumstances which will be narrated hereinafter. The marital difficulties which eventually prompted the separation date from the early part of 1955 and relate to defendant's association with a Mrs. Emanuel. It appears that she and her deceased husband had long been friends of the Gutmanns and, at their suggestion, had bought a chicken farm near the Gutmann farm in 1952, shortly after Doctor Emanuel suffered a stroke which disabled him from continuing the practice of his profession. A while later Doctor Emanuel died, and at about that time the poultry business in the area suffered a marked
decline in prosperity. In common with other chicken farmers, including the Gutmanns, Mrs. Emanuel encountered difficulty in the operation of her farm. Apparently the Gutmanns felt an obligation to assist the widow as they could. However, as time went on defendant's attentiveness to Mrs. Emanuel's affairs became objectionable to plaintiff. It may fairly be gleaned from the evidence that from early 1955 on, defendant made daily visits to the Emanuel farm and often returned to it at night. During this period plaintiff frequently expressed to defendant her resentment of defendant's constant attendance upon Mrs. Emanuel. These complaints provoked from her husband assertions that she should live her own life and let him live his; that he didn't need her any more. As time passed, the relationship between defendant and Mrs. Emanuel and Gutmann's lack of interest in his wife were noticed by others in this relatively small community and became the subject of invidious comment. This eventually reached such proportions that mutual friends of the couple, including defendant's brother, took the trouble to call the unpleasant situation to defendant's attention, and to warn him that the continuance of it would break up his marriage. Defendant was unmoved by the entreaties of his wife and the advice of his friends. Indeed, it appears that the more that was said to him the greater was his resistance, and the stronger his obsession that he had a right to live his life as he pleased, and that among its pleasures was his association with Mrs. Emanuel. On one occasion as the marital embroilment approached its climax plaintiff testified that the following occurred:
"In fact he came home one night and I said 'You stayed away all afternoon, you didn't come home.' He said 'Don't try to live my life; I will lead my own life'; and I got kinda frightened, and from that time on -- about two weeks before and every last day I was so frightened. He moved out of the bedroom and said 'Don't you come near me, I will make my own bed; I don't need you any more -- she needs me, I have to give her moral ...