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Brady v. Brady

Decided: January 16, 1968.

GAIL MARILYN BRADY, ALSO KNOWN AS GAIL BRADY, PLAINTIFF,
v.
FRANCIS ANTHONY BRADY, DEFENDANT



Consodine, J.c.c. (temporarily assigned).

Consodine

[98 NJSuper Page 600] This is a divorce action brought by the wife on the ground of desertion. Defendant was arrested, held for lack of bail, indicted for several crimes, pleaded guilty and later sentenced. He has been incarcerated continuously since his original apprehension and for more than two years. The question is

whether such a separation is a willful and obstinate desertion in the sense of our Divorce Act? N.J.S. 2A:34-2.

The society and support of the husband are fundamental commitments on his part to marriage. The relationship itself fails whenever these premises are dishonored. Surface fidelity is not enough. The measure of performance looks to the substantial reality. As Vice-Chancellor Pitney said in Coe v. Coe, 68 N.J. Eq. 157 (Ch. 1905):

"The duty of the husband to love and support his wife is a practical duty and is not performed by a manifestation of sentiment without corresponding conduct." (at p. 159)

He was speaking of a man who left home to find a job and never returned, although he busied his wife with affectionate letters marked with kisses. The principle applies, however, to a husband who chooses crime as his way of life.

Logically, when the husband conspired with others to commit an armed robbery, he must have known that one of the probable consequences of his acts was imprisonment and that such imprisonment might well be for an extended term. It is not essential that a separation from his wife should be the central or even a collateral purpose of his crime. That would indeed be an unusual situation.

As Chancellor Walker said in speaking of a constructive desertion in Csanyi v. Csanyi, 93 N.J. Eq. 11, 13 (Ch. 1921), "It is enough if it is the natural consequence of his acts."

It follows, therefore, that the separation of spouses because of imprisonment for crime is essentially willful, albeit externally enforced.

The more difficult question is whether it is also obstinate? What of a defendant who insists that, but for imprisonment, he would interrupt his confinement and return to his wife? And what prisoner would not so insist?

Our Divorce Act specifically rejects such contentions wherever the desertion preceded the arrest. Under N.J.S. 2 A:34-4 it is unavailing for a husband to express contrition

for a desertion begun before the imprisonment, for in such a case the incarceration is conclusively taken to be an extension of a willful and obstinate desertion. See ...


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