GREY, V. C.

Bill by Hazer Feinberg against Anna Feinberg. Heard on bill, answer, and proofs. Decree for plaintiff.

A. J. King and C. S. King, for petitioner.

Matthew Jefferson and John W. Wescott for defendant.

GREY, V. C. (orally). I do not care to hear again from Mr. King in behalf of the petitioner, as I am already satisfied that I ought to render the judgment which I will now announce. The petition in this case is filed for divorce on the ground of adultery, alleged by Hazer Feinberg against his wife, Anna Feinberg. The petition was filed in this court on January 22, 1904. The petition charges that the defendant committed adultery during the last six months of the year 1903 at Hammonton, at Atlantic City, and in Philadelphia, with one John Myers. The defendant's answer explicitly denies the petitioner's charge, but makes no counter charge, and asks no cross-relief. The proofs in this case submitted on both sides show the marriage to have taken place in 1896, the residence of the parties in this state, and the jurisdictional facts which enable this court to entertain this case. Coming to the consideration of that part of the testimony which throws light upon the matters in dispute between the parties, it plainly appears that if the defendant wife ever had any affection for her husband, the petitioner, she had wholly lost it as early as the month of August, 1903. From that time until they separated—about January, 1904—the wife had no affection whatever for her husband. There are mutual recriminations between the parties as to the character of their married life and the reasons for their separation; the wife insisting that the husband was cruel to her, and beat her, and he contending that whatever violence he showed toward her was the explosion of temper which he was led to give out because of his discovery of her infidelity; she insisting that she left him for good cause, because of his cruelty, and that she had for some previous time refused him his marital rights, because of her discovery of what had theretofore been unknown to her —that he had a venereal disease. He insists that, although he had a venereal disease, it was communicated to him by her, and from no other source. As to all these mutual recriminations, there is no credible outside testimony which enables me to come to any conclusion either way. The mother of the defendant is a witness, who testified regarding a discovery which she made about Christmas time, when she went down to Hammonton, and an admission which she says the complainant made to her acknowledging himself to be at fault in relation to the venereal disease. Her testimony was intended to convey that idea, but I am not able to give to the mother of the defendant any such weight as would lead me to accept her statement as establishing the fact that the husband admitted to her that he had obtained this disease from some one else than his wife. The mother intimates that this admission was made to her by the husband about Christinas time, 1903, but a few days before the separation of the parties. It is most improbable that a husband would tell the mother of his wife that he had acquired a venereal disease by being unfaithful to her daughter, and it is still less probable that he would have made such an admission at a time when he and his wife were at sword's points, in open quarrel about their domestic relations and attentions which she was accepting, against her husband's forbiddance, from other men. Nor is the testimony of the mother as given on the stand at all impressive of her truthfulness. She appears to be willing to adjust her statements to meet the needs of her daughter's case. I notice, too, that, although the wife claims to have known before she filed her answer in this case that her husband was suffering from this venereal disease, and although she now claims in her testimony that she did not communicate it to him, yet in her answer to his petition she does not set up this alleged unfaithfulness to show that he comes into court with unclean hands, and therefore cannot claim the relief which he seeks. As I am compelled to rely solely upon the testimony of one or the other of the parties in order to find either way upon these charges of unfaithfulness resulting in venereal disease, I pass them by; the more easily as neither party in the pleadings bases any claim for relief upon them.

Dismissing that feature, I come back to the statement, which I think is proven by the testimony on both sides, that during the last three or four months of the year 1903 this wife had no affection for the husband. The husband claims that she declared (and he brings other testimony to show it) that she never did have any affection for him, and that she did not want to have anything to do with him. I think it is clearly established by all the testimony that during the last three or four months of 1903 she hated him. I am not depending upon the husband's testimony for that, but upon that of other witnesses to whom the wife made statements of that character. We start, then, upon the examination of the proofs, with the established fact that during the last three or four months of her association with her husband this wife had no affection for him. It is also substantially undenied that during almost the whole of this period she refused her husband his marital rights, and, notwithstanding that she knew of her husband's objection to her reception of any attentions from Mr. John Myers, she willingly permitted him to visit her at her house in her husband's absence, and met him elsewhere upon terms of intimate friendship. Myers denies this and she denies it, hut the denial of neither of them is in any way conclusive to me, both from their manner when on the stand and because those denials are opposed to the statements of other witnesses (not the husband), who saw them together so frequently and under such circumstances that I am obliged to believe that they were upon intimate terms, and that their intimacy was of such a character that they both agreed that it should be hidden from observation.

We have, then, this situation: It is established that the wife has no affection for the husband; that he had prohibited her association with another man; that, notwithstanding her husband's commands, she secretly sought and received the society forbidden her. Her husband testifies that he saw her sit on the lap of Mr. Myers. I give hut little weight to that statement, because there is no corroboration of it whatever, and there is a denial of it, both on the part of Myers and the wife. Under the rule regarding testimony of that kind, it cannot carry conviction. But there is testimony of persons other than the husband, who saw the defendant and Mr. Myers meet under circumstances where all the probabilities indicated that their meetings were prearranged and surreptitious. Witnesses testify that they saw Mr. Myers come to Mr. Feinberg's house during his absence. The servant saw Mrs. Feinberg let him in the house through the hack parlor window at night. She testifies that they were in the parlor together, with the door shut. Mrs. Feinberg's own statements to her neighbors regarding her relations with her husband and Mr. Myers tend strongly to convict her. All of the testimony which is directed to this phase of the case indicates a sympathy and secret understanding between Myers and the defendant wife which has no occasion in any business relation, and which far exceeded in its intimacy the hounds of reasonable social intercourse. No reason appears for such attentions by Myers to the defendant; and when it is remembered that they were rendered against the husband's protest, and under efforts to hide their existence, they certainly bear the indicating marks of a disposition on the part of Myers and the defendant to a criminal intimacy. This disposition being shown, it is not necessary to prove by eyewitnesses that the parties criminally disposed were actually seen in flagrante delictu. It is enough if, under such circumstances, it is proven that they had the opportunity to have committed the crime of adultery. The testimony shows that Myers and the defendant privately occupied the parlor in her house at a time and under circumstances when anact of adultery could have been committed. The comings and goings of Mr. Myers into and out of Mrs. Feinberg's house were surreptitious, and by modes which indicated not only his confident intimacy with her, but also his intention to avoid discovery of his presence there, and her purpose to aid him to that end. There is no pretense that Myers went to the Feinberg house to visit any one else than Mrs. Feinberg. Myers' own testimony denies that he visited the Feinberg house in any other than the most frank and open manner as a casual visitor. But I am satisfied that the testimony of the other disinterested witness contradicting Myers' claim to have no especial interest there, or in Mrs. Feinberg, must be accepted as true.

In addition to this proof of opportunity when they were privately in a room together, there is evidence regarding two incidents which the petitioner claims show an actual finding of the defendant in the act of adultery. The first one is that narrated by the witness Renari. He testifies that he was paying some attention to the young woman who was then employed in the Feinberg house. One night, before the time when Mrs. Feinberg had separated herself from her husband, and while she still lived with him, Mr. Renari came into the dining room with this young woman, the room being partly darkened. Renari testifies that he stumbled and nearly fell over two persons lying together on the floor. One of those persons he recognized to be Mr. Myers. Renari does not in terms testify that the other was Mrs. Feinberg, but the transaction as related by Renari took place in her dining room, and the intent of the testimony was to give the impression that the other party was the defendant wife. Renari testifies that he walked around these persons as they were lying on the floor, and went with the girl into the kitchen, and there he struck a match. I did not understand him to say he came back and identified the parties on the floor any better than he had at the first meeting. Nor that he afterwards saw Myers in the house, but that he hoard him go out of the window. If Mr. Renari's testimony was the only evidence touching this incident, it would be more forceful to establish this phase of the complainant's case. The testimony (apparently relating to the same incident) given immediately afterwards by the young woman Miss Maxwell does not support Mr. Renari's story. If she is in fact referring to the same incident, her statement tends to throw doubt upon the accuracy of the narration of the witness Renari. She says that she and Renari did not go into the dining room, but entered the house through the kitchen; that they did not have any occasion to strike any match because there was an electric light in the kitchen, where she says they went; and that she did not notice any persons on the floor of the dining room as testified to by Mr. Renari. The rule regarding the weight of evidence in such cases I understand to be that, if the inculpatory evidence of the perpetration of an act of adultery is doubtful, the testimony of the accused spouse and of the alleged paramour, proffered in denial, should be accepted as a sufficient refutation. It is within the possibilities that the young woman may, on the occasion named, not have noticed Mr. Myers and the other person on the floor of the dining room. Mr. Renari says that he did not at the time mention to her what he had seen. But she was called to corroborate him as to this incident, and her testimony on the point threw doubt upon his. I have felt impelled, under all the circumstances, to hold that regarding this incident there is sufficient doubt to enable the denials of Mrs. Feinberg and Mr. Myers (which deny not only the accusatory part of this evidence, but also their presence in the dining room on the occasion referred to, and all improper relations) to be effective.

There is another charge at another date (on the evening of Christmas, 1903), which is supported by the testimony of a young girl, 19 years old, named Bertha Schindel. She was at the time a servant in the employ of Mrs. Feinberg, and had been so employed for some little time. She knew Mrs. Feinberg and she knew Mr. Myers. She testifies that Mr. Myers had come to the house when Mr. Feinberg was absent, and that he and Mrs. Feinberg occupied a room when nobody else was there, with the door shut. Upon the particular occasion when the act of adultery was committed which she discovered Bertha was in the cellar. She heard a little noise up in the parlor. She came upstairs from the cellar and opened the parlor door. It was somewhat dark in there, but not so dark that she could not see, and she saw Mr. Myers and Mrs. Feinberg on the parlor floor, with their clothes disarranged, and he on top of her. This testimony proves an act of adultery by the observation of a witness who was well acquainted with both of the parties to the crime. She had full opportunity to know their identity. She was then a member of Mrs. Feinberg's household. Her narration of the attending circumstances adjusts itself to the admitted and proven facts. Her manner on the stand, while hesitating and reluctant, is not unnatural in a young woman of 19 years, when called upon to narrate so shocking an incident in the presence of a crowded courtroom. She exhibits no hostility towards the defendant. She is not proven to have had any reason to be hostile to her. It is, in my view, impossible to refuse belief to this girl's statement. There is but one element of opposing proof. The mother of the defendant, who is quite an old lady, is put on the stand, to prove, if possible, that Mrs. Feinberg was not at her home at the time when Bertha Schindel testifies she saw the criminal incident above narrated, but was with her in Philadelphia;in short, to prove an alibi. There is evidence which contradicts the old lady's fixing of the time attending this incident. Her own testimony, as delivered, carried little weight. She evidently desired to protect her daughter in any way she could.

Counsel for defendant insists that the court should disregard the testimony of Bertha Schindel as perjured, and inspired by the malevolence of the petitioner. But there is no proof in the case which would justify such a course. No testimony shows that the petitioner stands in any position to Bertha which might have enabled him to influence her. Nothing shows that he ever tried to prejudice her, nor that she had any inducement to falsify her testimony either to gratify the complainant or to spite the defendant. It is argued that the circumstances narrated by her are in themselves improbable; that parties are not likely to commit adultery in a parlor with an unlocked door. It is impossible to draw a fixed line where (in the opinion of those inclined to adultery) decency ends and open lechery begins. There is enough proof in this case, other than Bertha's, to satisfy a court that, given the opportunity, the defendant would be very likely to take some chances in order to gratify her inclinations. I am unable to believe that a dark parlor in her own house, with no other person conveniently near but the servant (Bertha), who was taking care of the children in another part of the house, might not have been too inviting. As stated by the witness Bertha Schindel, the incident does not indicate such an open and shameless disregard for decency that her story is in itself incredible. The guilty parties who were in the parlor and in darkness might readily have supposed that they would not be intruded upon by the servant girl, who had duties elsewhere. No theory is suggested upon which I can lodge a substantial belief that this witness is either trifling with or coloring the truth or creating this story. The witness Bertha Schindel also relates that on another occasion she saw the defendant wife with Myers in the privy of the Feinberg house. She does not say that on this occasion they appeared to be engaged in actual adultery. But they were both in the place named, with the door shut. Such an association of a wife with a man other than her husband raises a presumption of such a degree of intimacy between them that, given proof of their disposition towards the crime of adultery, and leaving the situation unexplained, a fair inference may be drawn that they were upon terms of criminal intimacy. It is true that both the parties charged deny that these incidents narrated by Bertha Schindel ever occurred. But they also deny every inculpatory incident narrated by every other witness, no matter how disinterested they may be. Mr. Myers' credibility as a witness is also impugned by the testimony of Mr. Gerstenfeld, an entirely disinterested and intelligent witness. They were discussing the charge made against Myers of improper attentions to Mrs. Feinberg. Myers used an illustration, which is unmentionable here, but which indicates that Myers' state of mind towards Mrs. Feinberg was widely variant from the condition of innocence and purity, which, by his testimony here given, he wishes this court to ascribe to him. If the inculpatory testimony were doubtful, or inconsistent with the other evidence, the credible denials of the parties charged might be forceful to acquit them. But that is not the present situation. Bertha Schindel's testimony appears to me to be truthful. It agrees with the trend of the other proofs, and no doubt remains which may be solved by the denials of the accused. And these denials are in themselves unsatisfactory, because against the weight of the credible evidence. The only theory upon which this conclusion can be avoided is that so energetically insisted upon by counsel for the defendant. That theory is that the petitioner has contrived a plot of perjury, into which Miss Schindel has been drawn. But there is no testimony upon which such a theory can be based. It cannot be assumed that there has been a conspiracy, that Miss Schindel has fallen under the control of it, and that she comes here having prearranged a perjured story. That cannot be done unless some proof is exhibited to support such an argument; and there is not proof. On the contrary, the other testimony strongly indicates that Miss Schindel is telling the truth. The result is that as to the act of adultery supported by the testimony of the girl Schindel I find the defendant to be guilty.

The complainant is therefore entitled to a decree for divorce, because of the adultery charged in the petition.

There are three children of this marriage. The law requires me in a case of this kind to make a decree disposing of the custody of the children. The two older children are boys of seven and five years of age, and have remained with their father for over a year, during which their parents have lived apart, without any attempt on the part of the defendant to interfere with the petitioner's custody of them. The other child, three years of age, is a little girl. She has remained during the year in the care of the defendant, who was living separate from her husband. The result is that the custody of these children has been disposed of by the parents in a manner which both appear to have accepted as satisfactory to them. They have now been separated more than a year. The decree of this court will make their separation permanent. Under these circumstances the statutory authority to dispose of the custody of the children of the marriage ought to be exercised now. In case it is found that this decree shall in this respect operate unjustly upon the parties or againstthe interests of the children, it may be changed. I will advise a decree that the two older children, Herman and Samuel, who are in the possession of the father, shall remain in his care and custody—he, of course, to support them; and that the little girl, Sylvia, shall remain in the care and custody if her mother. The father should support all of his children. He should pay to the mother for the maintenance and support of the little girl, Sylvia, the sum of three dollars per week, each and every week. The decree regarding the custody of the children and for the payment of money for the maintenance of the child Sylvia shall be until the further order of the court. Each party shall have the right of visitation to the child or children who are in the custody of the other party. If counsel can draw a decree where the exercise of that right may be arranged according to the mutual convenience of the parties, I will accede to their arrangement; if they are unable to agree, I will make my own order as to how access shall be afforded to the parties to see their children. If I have made any mistake in my judgment as to the custody or support of these children, either party may at any time apply to the court to rearrange it upon any basis which is consistent with the circumstances of the parties and the equities of the situation.

Mr. King: In view of the fact that the little girl is outside of the jurisdiction of the court, how is the decree of the court to control that?

THE VICE CHANCELLOR: When any difficulty arises regarding the performance of the order of the court as to visitation, means of enforcing it will probably be found. The husband succeeding will have no costs of suit allowed him against his wife, but she is entitled to have him pay the expenses of her defense to this suit. I will allow to her a counsel fee of $30, and she should also have the costs of her defense to be taxed.