Grierson v. Grierson

MELVIN, J.

This is defendant’s appeal from an interlocutory judgment of divorce and from the order denying the motion for a new trial.

The judgment was in favor of plaintiff upon two causes of action, the first for desertion and the second for extreme cruelty. Appellant urges as grounds for reversal: 1. That

[436]

the demurrer was improperly overruled; and 2. That the findings are not supported by the evidence. The first cause of action is briefly,, but, we think, fully stated. The gist of it is in the following language: “That on or about the first day of July, A. D. 1904, the said defendant, disregarding the solemnity of his marriage vow, willfully and without cause, deserted and abandoned plaintiff, and has continued to live separate and apart from plaintiff, against her will, and without her consent.” We find no merit in the theory that the pleading fails to assert how long the desertion continued. The language quoted means, when fairly interpreted, that the desertion dating from about July 1, 1904, continued to the time of the filing of the complaint. It can'mean nothing else and would be given no additional force if words had been appended to the effect that the desertion lasted longer than the reasonable period mentioned in section 124 of the Civil Code. Nor was it necessary that the pleading should contain an added averment that in the abandonment of the plaintiff defendant remained away from her without sufficient cause, because the words “willfully and without cause” in the quoted paragraph of the complaint clearly modify the words “has continued to live” as well as the verbs “deserted” and “abandoned.”

Appellant’s counsel cites

McVickar

v. McVickar, 46 N. J. Eq. 490, [19 Am. St. Rep. 437, 19 Atl. 249], to support the view which he apparently holds that unless a defendant’s acts of cruelty show an

intention

upon his part to drive his wife from the home he may cure the results of a milder degree of cruelty, although it was sufficient to send her into temporary exile, by urging her to return to Mm. There is an expression in the closing paragraph of the learned vice-chancellor’s opinion in that case which, at first glance, might be taken as a statement of such a rule. Closer examination of the case, however, will bring to mind the fact that the writer of the opinion was discussing the duty of the offending party in seeking reconciliation if he would escape the conclusion that Ms wife lived separate and apart from him by his own desire. There is nothing in that opinion, however, which supports the theory that the wife must in every case accept the advances of her husband. But, even if there were such a rule, it would have no application here, for the court below found in this case