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Schneider v. Schneider

Decided: June 14, 1976.

LOUISE T. SCHNEIDER, PLAINTIFF,
v.
RICHARD C. SCHNEIDER, DEFENDANT



Griffin, J.s.c.

Griffin

The issue here involved is the interpretation of the second portion of N.J.S.A. 2A:34-2(e) stating, as a ground for divorce, "habitual drunkenness for a period of 12 or more consecutive months subsequent to marriage and next preceding the filing of the complaint."

The words "next preceding the filing of the complaint" have not been interpreted by any reported case in New Jersey.

On October 29, 1975 plaintiff filed a complaint seeking a divorce based on her husband's alleged drunkenness. A separate defense in the answer reads as follows: "defendant has discontinued any drinking since September 4, 1975, and is a member of A.A. and therefore, he has not been a habitual drinker within one year prior to the filing of the complaint." The wife moves to strike this separate defense.

The pertinent facts are set forth in the husband's affidavit as follows:

I had previously a drinking problem but stopped in the middle of July, 1975. I fell back on or about August 22, 1975, as a result of which I signed myself into Overlook Hospital on August 27, 1975, and remained there until September 4, 1975. I am now a member of A.A. and for the last number of months have succeeded in discontinuing any drinking.

The parties have been separated since August 24, 1975.

For the purposes of this motion it must be assumed that the husband did not drink for approximately two months immediately preceding the filing of the complaint. He contends that the statute must be strictly construed and that no cause of action exists.

There are not many out-of-state cases involving similar statutes.

If a reasonable period has passed and the habitual drunkenness has ceased, the divorce will not be granted. Hammond v. Hammond , 240 Mass. 182, 132 N.E. 724 (Sup. Jud. Ct. 1921) (six months after drinking ceased); Meathe v. Meathe , 83 Mich. 150, 47 N.W. 109 (Sup. Ct. 1890) (six months after drinking ceased); Kennon v. Kennon , 150 Me. 410,

111 A.2d 695 (Sup. Jud. Ct. 1955) (one year after drinking ceased). Where the husband has been in an insane asylum so that he could not consciously break the drinking habit, the court in Fish v. Fish , 126 Me. 342, 138 A. 477 (Sup. Jud. Ct. 1927), granted a divorce even though he apparently had stopped drinking. The Supreme Court of Alabama, in the case of Meares v. Meares , 256 Ala. 596, 56 So. 2d 661 (1952), denied a divorce where the wife was out of touch with the husband for one year; hence, she could not establish whether or not his drinking continued. The Connecticut case of Allen v. Allen , 73 Conn. 38, 46 A. 242 (Sup. Ct. of Err. 1900), is unusual as it required that the wife show that the habitual drunkenness continued right down to the date of judgment. This case turned on the strong public policy against divorce which existed in Connecticut at that time. The present public policy of New Jersey, however, is to terminate dead marriages. See Altbrandt v. Altbrandt , 129 N.J. Super. 235 (Ch. Div. 1974); Ballard v. Ballard , 124 N.J. Super. 462 (Ch. Div. 1973).

Counsel draws a parallel between the statute involved here and N.J.S.A. 2A:34-10 which governs jurisdiction in divorce proceedings. The jurisdictional statute provides, in substance, that no action for divorce may be commenced for any cause other than adultery "unless one of the parties has been for the 1 year ...


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