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Dunston v. Dunston

New Jersey Superior Court, Chancery Division


Decided: June 5, 1973.

ELBERT DUNSTON, PLAINTIFF,
v.
ISABELL DUNSTON, DEFENDANT

Consodine, J.s.c.

Consodine

[124 NJSuper Page 215]

Plaintiff sues for divorce on the separation ground N.J.S.A. 2A:34-2, subd. d. The parties were separated from 1961 to 1971. They lived together for four months in 1972 and again separated.

The statute, supra , conditions a judgment of divorce on primary and corroborative proof (Bolmer v. Edsall , 90 N.J. Eq. 299. (Ch. 1919)) that the parties have lived in different habitations for at least 18 or more months without a reasonable prospect of reconciliation. In the latter regard the statute creates a presumption of law that, after an 18-month period of separation, there is no reasonable prospect of reconciliation. This presumption, however, does not create a vested right to a divorce if subsequent conduct is violative of the wording of the statute. A reasonable prospect of reconciliation was created by the parties. Such a presumption disappears upon the introduction of substantial evidence by way of contradiction. In re Blakes , 21 N.J. 50

[124 NJSuper Page 216]

(1956); Spear v. Lyndale Mfg. Co. , 35 N.J. Super. 385 (App. Div. 1955). See also, N.J. Rules of Evidence (1972 ed.), Rules 13 to 16; Wigmore on Evidence (3d ed. 1940) ยง 2491 at 288.

The rebuttal of the presumption applies here to the ten-year period of separation and leaves plaintiff with a lack of several months before the resurgence of another presumption under the statute.

Complaint for divorce on separation dismissed with prejudice on the facts.

19730605


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