Opinion
No. 41/187.
04-10-1917
EISENGER v. EISENGER.
McCarter & English, of Newark (Conover English, of Newark, of counsel), for complainant. Samuel Press, of Newark, for defendant.
Suit by Dordet Eisenger against Charles Eisenger. Decree for complainant.
McCarter & English, of Newark (Conover English, of Newark, of counsel), for complainant. Samuel Press, of Newark, for defendant.
LANE, V. C. (orally at conclusion of hearing). This Is a suit brought by complainant against her husband upon three causes of action: First, to compel defendant to turn over to complainant property known as 27 Maple avenue, in Irvington, legal title to which is in complainant, it having been transferred to her by the husband through an intermediary on August 16, 1899; second, for support and maintenance under the statute; third, to recover the sums of $60 and $400, alleged to have been loaned by complainant to defendant. The answer is a general denial. There is also a cross-bill, in which defendant asserts that the property was purchased with his money, and that substantially there was, at the time of the transfer to complainant, an agreement under which the equitable title was not to vest in her. Both parties are of German nationality, and came to this country about 30 years ago. They were married October 25, 1883, in Germany, and almost immediately came here and resided in the city of Newark as husband and wife up to October 8, 1914, at which time the complainant left defendant. There are three children: Amelia, aged 32, Gustave, 21, and Henry, 23. Up to the time of separation the two sons, the father and the mother resided at the Maple street house. The daughter at the age of 15 commenced to work, first as a companion, at which she earned about $15 a month; this lasted for a year, and then she received $18 a month for some 6 years; she also during all this time received her board and most of her clothes. Since the latter period she has acted as a practical nurse, and has been receiving about the sum of $15 to $18 a week. She did not, after she started to work, live at home, although she came home every Sunday and an afternoon of each week. The sons went to work when they were about 16 years old. One, the eldest, received $7 a week; the youngest $4 a week for one year, and then $7. The earnings of the father, the two sons and the daughter over and above what was absolutely necessary for their personal needs were turned over to the mother. There were certain building and loan shares carried in the name of the daughter, the dues upon which were paid by the mother out of the common fund. So, I think, with respect to the sons. The mother also had when she came from Germany some 350 marks, and she received 1,000 marks afterwards, which sums were taken by the husband and became a part, really, of the common fund.
1. In 1894 the lot on Maple street was bought, upon which was built the house in which the parties together resided up to October 8, 1914. $425 was paid for this lot. I find that this came out of the common fund, and that it is impossible to ascertain whether it was the moneys wholly of the husband, or partly of the husband and partly of the wife. Title to the lot was taken in the name of defendant. It remained in his name until August 14, 1899, at which time, by full covenant and warranty deed through an intermediary (Gustave Maywald), he transferred it to complainant, where it has since remained. In 1904 a house was built upon the lot, costing about the sum of $1,800. The money was raised upon a mortgage given to the Springfield Building & Loan Association. This required the payment of the sum of $22.50 a month until the series ran out some years ago. The loan has been paid off. The moneys used to pay it off came out of what I have called the common fund, actually paid by complainant from the mingled moneys of the father, the two sons, and the daughter.
The father testified that the reason why he transferred this property in 1899 to his wife was that he was afraid that he would be called upon to pay some sum of $200, which he desired to avoid payment of. If that be true, the case is within Hall v. Hall, 74 Atl. 651, in which it is held that, where a transfer is made for the purpose of defrauding creditors, there can be no relief.
Irrespective of the reason for the transfer, however, I think, under Fretz v. Both, Court of Appeals, 70 N. J. Eq. 764, 64 Atl. 152, Hood v. Hood, 83 N. J. Eq. 695, 93 Atl.797, Lister v. Lister, 35 N. J. Eq. 49, affirmed 37 N. J. Eq. 331, Read v. Huff, 40 N. J. Eq. 229, and Beck v. Beck, 78 N. J. Eq. 544, 80 Atl. 550, 35 L. R. A. (N. S.) 712, that I am constrained to hold that there has been no evidence here shown that would permit me to determine other than that both the legal and equitable title to this property is in complainant. There will have to be a decree for complainant on this branch of the case. The cross-bill of the defendant will, of course, be dismissed.
2. With respect to the maintenance suit. The testimony of the two sons and the daughter is to the effect that for many years the father has treated the wife cruelly; that he has persistently and consistently called her, upon the slightest or no provocation, such names as "son of a bitch," "bastard," "dirty dog," and other names of like nature. They are unable to give specific instances, except in one or two cases. The explanation is that it was practically continuous. They also, all three of them, testify that threats of physical violence have been made against complainant; that upon one occasion the son had intervened in order to prevent defendant from maltreating complainant. The daughter testifies that at various times things were thrown at the wife; that defendant had a violent temper; that he was addicted to the use of intoxicants to such a degree that, if he did not imbibe them to such an extent as to completely paralyze him, yet he did persistently to such an extent as to put him in a mood where the slightest thing would lead to an ebullition of temper. He worked in Eeigenspan's Brewery, and he had there all the beer he wanted to drink; he also had whisky, wine, and beer in his own cellar, and the testimony is to the effect, and I believe it, that the cellar of his house was a gathering place for convivial spirits. The testimony of the daughter and the two sons is also corroborated to the extent of the calling of names by two of the witnesses produced by defendant, who stated that they had heard the use by defendant of the term "son of a bitch" as addressed to the wife, etc. One of the witnesses stated that he thought that the man did not mean what he was saying, that he was mad, and that it was some slight thing that caused his anger.
The events which led up to the actual separation are about as follows: On October 8, 1914, defendant came home angry over something about 3 or 4 o'clock in the afternoon, and immediately got into a dispute with complainant. The wife and daughter both testify that defendant attempted to strike complainant, and the daughter intervened and her glasses were knocked off; defendant, while denying this, denies in a manner that is equivocal. He says "not to my knowledge" did such a thing happen. He admits that there was a quarrel, and he says that his wife called him all kinds of names, and that he remained mute. Judging the man from his demeanor upon the stand, I do not believe this. At any rate, things quieted down until about 2 o'clock in the morning, and then complainant and her daughter agree—I think the sons also—that defendant got up about an hour earlier than ordinarily he would, resumed the quarrel, and stated that, if any of them were home at the time he got home the next morning, they could expect to be killed, or words to that effect, and told complainant, as it had been he had told her several times before, that he was through with her, that he would give her $5 a week if she would go away and stay away from him, and that he did not want her any longer. There is also testimony to the effect that he had told her several times before to take five cents and go out and buy a rope and hang herself. I hold that he made these statements. Unless I should disbelieve the testimony of the daughter; and the two sons and complainant and the two witnesses produced by the defendant, I must find that defendant, when he said that he did not call his wife these names or do any of these acts, either committed perjury, or that he was so under the influence of liquor when he acted as not to be able to remember after he had acted what he had done.
Complainant left defendant on October 9, 1914, and took with her, as was natural, everything that she thought she needed for her support. Considerable is endeavored to be made of the fact that she took furniture, clothing, and various provisions. I think under the circumstances that this was a natural thing for her to do. Complainant was on the stand. I had an opportunity of observing both her husband and herself. She is a very slight, apparently weak woman. Her husband is apparently a strong, robust man. As an indication of what this woman has been subjected to throughout her life it is testified to by her and admitted, that up to two years ago she was obliged to take off his shoes and socks and perform other such personal services for him. Influenced by the testimony adduced and the appearance of the parties, I have come to the conclusion that this woman has been under the domination of this man for some 29 years; that she, acting according to an old-world standard, recognized the husband as the head of the family and submitted to whatever he desired, because, as she said on the stand, "Why, I had to;" that the mere fact that she did submit for 29 years is not to be taken as proof that her story and that of her children as to what actually took place is not true. I think it did take place, and that what happened was that on the night of October 8, 1914, the string snapped, the patience of the woman finally gave out, and she now has taken the position that she will not go back to her husband because of fear, and I believe that her fear is not feigned. I thinkit would be a grave injustice for this court to make a decree which would have the effect of compelling the wife, at this time, to go back to the husband. I think she is entitled to a decree for separate maintenance. I might add that in April, 1915, after the wife had been gone since October, 1914, the husband brought to live in the house 27 Maple street a Mrs. Beyer, a widow, and her sister, a Mrs. Hogan, who is not living with her husband, and her two children. Defendant says that he got them there in order to keep house for him, and they say that they went there in order to keep house for him. He gets $3 a week from Mrs. Hogan for the two children and I think $3 a week also for her. I am not certain of that. The mother of Mrs. Beyer also lived with them until she died about eight months ago. Defendant says he endeavored to get complainant to return before he took this step, that he tried to call on her, and that the family refused to tell him where she was, and that he finally wrote her. He has no copy of the letter. The letter is not produced nor called for. I am unable, therefore, to determine whether the letter contained any expressions of repentance or expressions of promises of reformation or not. From the nature of the man as developed upon the stand I rather imagine it did not. A correct indicia to his character may be derived from his testimony on the stand to the effect that upon one occasion what he wrote to his wife was:
"Either you come back by April 1st or if you don't then I will bring in some other people to take your place."
I do not pass upon the question, because it is unnecessary whether or not the testimony of the daughter and son is true as to what is alleged to have transpired in the kitchen and room adjoining in Maple street. I think it will have no influence on the present case. I will advise a decree for maintenance.
It is, of course, the law that mere harsh words, mere threats even of personal violence, unaccompanied by some overt act, mere intoxication, even habitual intoxication to a certain extent, are not sufficient to warrant a decree of separate maintenance, but when all three combine, or two combine, and such a course of conduct is persisted in for a number of years, then this court will lay hold upon slight physical cruelty in order to justify a decree. The question would be as to how much alimony, if any, under the circumstances of the case is to be awarded.
3. Upon the third cause of action, that is, for the recovery of the $60 and $400, I have concluded to dismiss it. My finding that the fund was a common hoard renders it impossible for me to determine that this money belonged absolutely to the wife. It was so mixed that the same reason which inclines me to deny relief to the defendant upon his cross-bill inclines me to deny relief to the complainant upon her third cause of action.
The Court: Now, how much alimony ought to be allowed?
Mr. English: By his own testimony he is getting $17 or $18 a week.
The Court: I do not think I will allow more than $4 a week, if I allow that. I will allow $3.