Schubert v. Schubert

New Jersey Superior Court App Division

Schubert v. Schubert

21 A.2d 794, 130 N.J. Eq. 242, 1941 N.J. LEXIS 595

CourtNew Jersey Superior Court Appellate Division

DecidedSeptember 19, 1941

StatusPublished

This text of 21 A.2d 794 (Schubert v. Schubert) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schubert v. Schubert, 21 A.2d 794, 130 N.J. Eq. 242, 1941 N.J. LEXIS 595 (N.J. Ct. App. 1941).

Pincite

Opinion

The opinion of the court was delivered by

Bodine, J.

This was an action for maintenance. To sustain the action it must be shown that a husband without justifiable cause *243 abandoned his wife and failed to provide for her. N. J. S. A. 2:50-39.

The parties were married in 1912 and have been long separated. The husband in a prior petition for divorce alleged that his wife deserted him in September of 1925. In her answer she denied this and alleged that she had been deserted by him in 1926. On September of 1935, the proceedings were dismissed without prejudice. The bill in the present proceeding alleges that after the dismissal in 1935 of her husband’s petition for divorce he did not return to her and failed to make any effort to insure a reconciliation. He answered that he was under no such duty, since she had deserted him in 1925. This part of the answer was later withdrawn.

She testified, in this proceeding, to his desertion of her in 1937. There was no denial of this. Nor was there any suggestion of matrimonial offense by the wife.

The case is of a threadbare sort. There was, however, proof of an unjustifiable desertion and a failure to provide for the support of the complainant. The decree for maintenance was, therefore, within the corners of the court’s jurisdiction.

It is argued that the bill was insufficient, but even if so the material facts were proven and not controverted. Pleadings in equity are not, in this day, to be tested by technical rules.

The decree is affirmed, with costs.

For affirmance — The Chiee-Justice, Parker, Bodine, Donges, Heher, Perskie, Porter, Colie, Dear, Raeeertt, Tiiomesow, JJ. 11.

For reversal — Case, J. 1.

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The opinion of the court was delivered by

Bodine, J.

This was an action for maintenance. To sustain the action it must be shown that a husband without justifiable cause *243 abandoned his wife and failed to provide for her. N. J. S. A. 2:50-39.

The parties were married in 1912 and have been long separated. The husband in a prior petition for divorce alleged that his wife deserted him in September of 1925. In her answer she denied this and alleged that she had been deserted by him in 1926. On September of 1935, the proceedings were dismissed without prejudice. The bill in the present proceeding alleges that after the dismissal in 1935 of her husband’s petition for divorce he did not return to her and failed to make any effort to insure a reconciliation. He answered that he was under no such duty, since she had deserted him in 1925. This part of the answer was later withdrawn.

She testified, in this proceeding, to his desertion of her in 1937. There was no denial of this. Nor was there any suggestion of matrimonial offense by the wife.

The case is of a threadbare sort. There was, however, proof of an unjustifiable desertion and a failure to provide for the support of the complainant. The decree for maintenance was, therefore, within the corners of the court’s jurisdiction.

It is argued that the bill was insufficient, but even if so the material facts were proven and not controverted. Pleadings in equity are not, in this day, to be tested by technical rules.

The decree is affirmed, with costs.

For affirmance — The Chiee-Justice, Parker, Bodine, Donges, Heher, Perskie, Porter, Colie, Dear, Raeeertt, Tiiomesow, JJ. 11.

For reversal — Case, J. 1.

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Bluebook (online)

21 A.2d 794, 130 N.J. Eq. 242, 1941 N.J. LEXIS 595, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schubert-v-schubert-njsuperctappdiv-1941.