Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Conford, S.j.a.d. Gaulkin, J.A.D. (dissenting).
[79 NJSuper Page 390] This is an uncontested action for divorce on the ground of the defendant's desertion of the plaintiff. Judge Hand, sitting in the Chancery Division, denied relief on the ground of plaintiff's adultery, he having married another woman after his wife left him and cohabited with her continuously up to and at the time of the trial. (For aught we know that cohabitation continues to this day.)
Plaintiff gave the following testimony. He married the defendant, Mattie Belle Robinson Wells, in Florida, the state of his birth, in 1929. They had one child. In 1933 she left him without cause over his objection. He wrote her several times in North Carolina asking her to return, but received no reply. He did not go there to see her. Later he moved to New Jersey, and in 1944 he entered into a ceremonial marriage with a woman now known as Ruby Wells with whom he has lived as man and wife ever since in Newark. They have no children. In or about March or April 1961 his wife's whereabouts came to his attention when she telephoned his brother from Detroit upon reading about the death of another brother. Plaintiff's counsel frankly explained in his opening to the trial court that he advised the bringing of this action to eliminate any title questions in connection with "a property transaction" for plaintiff and Ruby Wells. The complaint was filed July 3, 1961.
The matter was heard in the Chancery Division December 5, 1961 and February 9, 1962. Upon plaintiff's testifying to the foregoing facts the trial judge regarded it as his duty to have plaintiff particularize what was clearly to be implied from his testimony and from counsel's opening -- that he was still cohabiting with Ruby as of the time of the trial, as late as February 9, 1962, notwithstanding he had filed an action in the Superior Court several months before alleging that he was lawfully married to Mattie and praying a divorce from her for her alleged desertion. After considering the matter, Judge Hand filed an opinion concluding that the action must be dismissed by reason of the recriminatory defense of adultery arising out of the continued cohabitation of plaintiff and Ruby after he learned early in 1961 that his wife Mattie was still alive. Wells v. Wells , 73 N.J. Super. 545 (Ch. Div. 1962), commented upon in 17 Rutgers L. Rev. 456 (1963).
Although the trial court did not rest its decision on the cohabitation of plaintiff and Ruby during the years before he learned that Mattie was still alive, but only on the subsequent relations between them, plaintiff is at pains on this appeal to
develop the point that the earlier period of cohabitation was not adulterous because of the entry of plaintiff and Ruby into the ceremonial marriage relationship in good faith and armed with an asserted statutory presumption that Mattie was dead. For purposes of this appeal it will not be necessary to determine whether, under the facts presented, the relationship with Ruby was adulterous prior to the coming to light of Mattie's continued existence. A persuasive argument can be made that it was not if one assumes that which here is attended by considerable doubt -- that plaintiff made such reasonably thorough inquiries concerning the whereabouts of his wife as justified him in a bona fide belief that she was actually dead when he remarried. See Smith v. Smith , 64 Iowa 682, 21 N.W. 137 (Sup. Ct. 1884); Meyer v. Meyer , 343 Ill. App. 554, 99 N.E. 2 d 706 (Ill. App. Ct. 1951); Geisselman v. Geisselman , 134 Md. 453, 107 A. 185, 188 (Ct. App. 1919); cf. N.J.S. 2A:92-1, negating the crime of bigamy upon a good faith remarriage after five years' absence of the spouse. Our affirmance of the judgment, however, will rest, as did the determination of the trial judge, on the continued cohabitation by plaintiff with Ruby after knowledge that Mattie was alive and pending the divorce action.
Obviously, any arguable presumption under N.J.S. 3A:40-1 as to Mattie's death prior to the marriage to Ruby was dissipated upon the establishment below of the fact of Mattie's survival in 1961. See Simmons v. Simmons , 35 N.J. Super. 575, 582 (App. Div. 1955). Moreover, plaintiff affirmed the fact of Mattie's survival and of the continued subsistence of a legal marital status between them when he filed his complaint in this action.
Further, although we do not here have to decide whether plaintiff married Ruby in good faith in 1944, we cannot accede by silence to plaintiff's argument that the cited statute supports plaintiff's justification in having remarried without first obtaining a divorce from his absent wife. The statutory presumption of death from seven years' unexplained absence operates only when the fact of life or death of the
absentee becomes material in an action, not before or otherwise. Spiltoir v. Spiltoir , 72 N.J. Eq. 50, 52 (Ch. 1906). As was stated in the cited case in reference to the effect of the statute upon a person in a position like that of the present plaintiff before his second marriage: "A person situate as is the petitioner here, who marries again without procuring a divorce, does so entirely at his or her peril as to the validity of the marriage * * *." (at p. 53).
We find Judge Hand's determination in this case to have been a conscientious and correct discharge of his responsibility notwithstanding his sympathies admittedly lay with the plaintiff. The State is a third party in every divorce case, interested in the maintenance of the marriage relationship, and it is the duty of the trial judge, even in an uncontested case, to see to it that a divorce is not granted except where warranted on the statutes and the proofs. In re Backes , 16 N.J. 430, 433-434 (1954); Kress v. Kress , 1 N.J. 257 (1949); Welch v. Welch , 35 N.J. Super. 255 (App. Div. 1955); Francis, J., dissenting, on other grounds, in Schlemm v. Schlemm , 31 N.J. 557, 585 (1960). Further, as stated by Mr. Justice Francis, ibid. , "So grave is the judicial obligation that its satisfaction requires 'that all proper defenses be made or compelled.' Giresi v. Giresi , 137 N.J. Eq. 336, 341 (E. & A. 1945)."
Although generally the defense of recrimination must be pleaded to be availed of by a defendant, a recognized exception is that "the relief prayed for by the petitioner will not be granted, notwithstanding that recrimination is not set up as a defense, if he in putting in his case shows his own guilt." Young v. Young , 94 N.J. Eq. 155, 157 (E. & A. 1922). The case on appeal before us presents precisely that state of affairs. The rationale of the exception, as declared in Young , "is that when the complainant himself shows that he is in pari delicto and ...