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ELBERT DUNSTON, PLAINTIFF, v. ISABELL DUNSTON, DEFENDANT.

CONSODINE, J.S.C.

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 (1956); Spear v. Lyndale Mfg. Co., 35 N.J. Super. 385 (App.Div. 195 5). See also, N.J. Rules of Evidence (1972 ed.), Rules 13 to 16; Wigmore on Evidence (3d ed. 1940) § 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.

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DUNSTON v. DUNSTON
(Jun 5, 1973)