Opinion
11-11-1904
APGAR v. APGAR.
James L. Griggs, for petitioner. H. B. Herr, for defendant.
Suit for divorce by Ira Apgar against Elizabeth Apgar. Decree awarded.
James L. Griggs, for petitioner.
H. B. Herr, for defendant.
BERGEN, V. C. The evidence in this cause leaves no doubt as to the guilt of the defendant, and I find that she was guilty of the crime of adultery, as charged in the petition. The defendant, however, insists that the offense was condoned, and relies upon the testimony of the petitioner in support of her claim. This defense does not appear in the answer. On the contrary, the adultery is denied, and on the theory of the defense there was nothing to be condoned. While condonation should be pleaded, in order that the petitioner may be prepared to meet it, the defendant should be allowed to amend her answer so as to raise this issue, when, as in this case, the evidence on that point was taken without objection, and I will therefore consider the answer as presenting this objection to the petitioner's right to a decree.
The condonation is based entirely upon the testimony of the petitioner, which was that some time in July, 1903, he heard something from a Mr. Blaizer "about her [his wife's] relations with a man by the name of Collins." What Blaizer told him does not appear, but we are asked to infer that because his wife, who was called as a witness, had knowledge of sufficient facts to convince us of the defendant's infidelity, all of her knowledge had been imparted to the petitioner. That Blaizer told the petitioner sufficient to arouse his suspicions is manifested by his statement that he thought possibly his wife had been misled, and might reform and be all right; and on this statement it is sought to predicate the charge that the petitioner was informed of his wife's adultery, and, with that knowledge, continued to cohabit with her. I am not satisfied from the evidence that the petitioner was made aware of the extent of his wife's misconduct. Mr. Blaizer was not present at the times spoken of by his wife, and all he could possibly know was what his wife had told him; and as the opportunity to commit the adultery was afforded by Blaizer's wife leaving the defendant alone, at a late hour in the night, in her house in Morristown, with a traveling showman, the fair inference is that she did not communicate all the facts to her husband. Mr. Blaizer was not called as a witness by the defendant, as he might have been, and the neglect to call so important a witness justifies the belief that his testimony would not aid the defendant. It does not appear to my satisfaction that the petitioner had such knowledge of his wife's adultery as to interpret his subsequent conduct towards her as a condonation of the adultery charged. Condonation or forgiveness, to be effective, requires the subsequent good conduct of the one forgiven. If the petitioner is to be charged with the knowledge of the facts as disclosed in the evidence, namely, that his wife, without previous acquaintance, had met a showman named Collins while the circus to which he was attached was exhibiting in Gladstone; walked along the street with him late at night, permitting him to hold her hand; met him at Summit, accepted a finger ring as a present from him; followed the circus to Morristown, and there met him again; walked the streets with him after dark; spent the evening with him at Mr. Blaizer's in the absence of Mr. Blaizer; submitted to his embraces in the presence of Mrs. Blaizer; remained alone with him until midnight after Mrs. Blaizer had retired—and, with all this knowledge, had forgiven her, such forgiveness might be properly withdrawn if the future misconduct of the wife justified it. Even if I am wrong in determining that the husband had no such knowledge until after he had left his wife, and that he can be properly charged with condoning the crime, I am satisfied that by her subsequent conduct the wife lost the benefit of the forgiveness. It appears that in July, 1903, after the petitioner had his talk with Blaizer, the defendant attended an evening open-air church festival, and, leaving her child with the petitioner, went off out of the petitioner's sight with a man named Gorden, then a stranger to petitioner; that he saw her on other occasions with this man, and protested against the attentions she was receiving from him, and finally one morning while at work near his home, seeing Gorden going in that direction, he went home, and found Gorden and his wife in the parlor, with the shades all down, although it was about 8 o'clock in the morning; that defendant admitted she was not the right kind of a woman, and, if petitioner did not want to live with her, he knew what he could do. And in my judgment, ifany condonation existed, it was forfeited by this conduct.
The petitioner is entitled to a decree according to the prayer of his petition, and I will so advise.