Opinion
No. 45/96.
06-17-1919
MATTHEWS v. MATTHEWS.
Vredenburgh, Wall & Carey, and John A. Hartpence, all of Jersey City, for petitioner. Oscar B. Redrow, of Camden, for defendant.
Petition for divorce by Helen Clarke Matthews against Clarence Dudley Matthews. Petition dismissed.
Vredenburgh, Wall & Carey, and John A. Hartpence, all of Jersey City, for petitioner.
Oscar B. Redrow, of Camden, for defendant.
BACKES, V. C. This petition is by the wife against her husband for divorce a vincula on the ground of desertion. They were married in 1904. The petitioner left her husband a number of times and finally in March, 1913, because of his alleged extreme cruelty. The statutory remedy for extreme cruelty is a divorce a mensa et thoro. If, however, because of such cruelty the injured spouse separates from the offending spouse, and the latter fails to make proper amends for the period of two years next ensuing, the statutory offense of willful, continued and obstinate desertion arises by judicial construction and the relief is an absolute divorce.
To entitle the petitioner to a divorce on the ground of constructive desertion, she must establish, not alone that her husband's conduct was such as to have warranted her in leaving him, but that it was of a character evincing a purpose on his part to rid himself of her, or that it was of such an extreme nature as to compel her to be rid of him for her safety and protection. Inconsiderate conduct of the husband may justify a wife's involuntary separation, and without more neither would be entitled to a divorce on the ground of desertion. Laing v. Laing, 21 N. J. Eq. 248. To convert a separation occasioned by misconduct after a lapse of two years of unrepentance into a statutory desertion, extreme cruelty must be established. The test is: Was the cruelty such as to have entitled the petitioner to a divorce a mensa et thoro at the time of the separation, and was the separation acquiesced in by the defendant for two years thereafter without sincere offer of reformation? Rogers v. Rogers, 81 N. J. Eq. 479, 86 Atl. 935, 46 L. R. A. (N. S.) 711.
I listened with careful attention for a day or more to the petitioner's "tale of marital woe—not unmixed with happiness—and her recital far from satisfies me that her husband's treatment of her constitutes extreme cruelty according to the legal standards, flexible as they are in application.
I would have been warranted in abruptly dismissing the suit because it rests in the main upon the unsupported testimony of the petitioner. It is the unvarying rule of this court never to grant a divorce upon the uncorroborated testimony of the petitioner. All of the authorities hold to this. Whether in a given case the testimony is corroborated within the meaning of the rule is sometimes debatable, but the principle itself has never been questioned.
The testimony of the mother of the petitioner, and that of a friend, Mrs. Spann, relates to isolated occurrences that do not attest the petitioner's story of the causes that led to the final separation. Mrs. Spann simply verified the petitioner's version of what occurred on Decoration Day, 1910, as hereafter related, and the mother gave testimony of the petitioner's physical appearance and mental condition, and that once upon a visit to her son-in-law at Christmas she found things pleasant, and upon either one or two other visits her son-in-law appeared to have been drinking, and was quarrelsome and treated the witness rudely, and especially on one occasion when she went for a visit of a month he was ugly toward her while in drink, cursed, and threatened to strike her with a chair, and that upon this occasion the two mothers-in-law got into a common brawl; husband and wife taking sides with their respective parents. The witness made it quite plain that her son-in-law was not very fond of her. Whatever unbecoming conduct he was guilty of was not, according to the witness, directed at his wife especially; he was ugly and quarrelsome generally, and this naturally, under the circumstances, caused great distress to the petitioner. That is all the so-called "corroboration," and does not meet the requirements.
The defendant was in court and heard all that his wife had to say about him, but failed to take the stand. Whether he refrained because of a sense of guilt, or out of consideration for his wife, and a desire that she obtain a divorce, I am unable to say; but, judging from his recent actions, I am inclined to think that a divorce would not have been unwelcome to him. I gather this from his conduct after the separation. He was profuse in his profession of a desire to have his wife return to him, and even as late as February, 1918, persuaded her to withdraw her cross-petition for a divorce in this court on the ground of desertion by holding out to her prospects of a reconciliation, and then abandoned further effort to that end, when the suit was dismissed. Of this I will speak later. The defendant's silence in open court, seems to me, cannot be regarded as confirming the petitioner's testimony. In Hague v. Hague, 85 N. J. Eq. 537, 96 Atl. 579, the husband's testimony in support of his wife's charge of desertion was considered by the court of appeals, but I know of no authority holding that his refusal to deny the charges is corroboration. It was the defendant's privilege to rest his defense upon the case as made out by the petitioner, and this was the attitude of his counsel who argued for a dismissal for want of proof of cruelty and lack of corroboration.
However, I was not much influenced by the absence of corroborating testimony. The petition was dismissed chiefly on the ground that the petitioner's testimony, accepting itas probative, did not make out a case of extreme cruelty, justifying the separation and its continuance, so as to entitle her to a divorce for desertion.
The petitioner is a refined, educated, and cultured lady, and highly sensitive. She gave her version of domestic unhappiness and discord with frankness and candor, not shirking her own responsibility for some of the friction; but withal I feel that some of it was not without unconscious exaggeration. The husband, too, is of her class and standing, and, when not in his cups or angry, bore himself gentlemanly toward his wife. That they were fond of each other, and that between sprees they were happy together, and that the wife still has affection for her husband, there can be no denying. But he would get drunk, every so often, she says, about once in four weeks of a Saturday night, and when in that condition he was offensive. He would vomit, soil the bedclothing, curse, not at her but at random, and especially repulsive was he to her at these times in the exercise of the marital rights. They were not excessive, but he would, as she says, maul her, and this she detested. It is not clear that he always did this when intoxicated, but at any rate he quit the practice in 1906.
They first went to live at Kenwood, a suburb of Camden; but, because of her delicate health and inability to keep house, lodgings were taken in Camden, where they had to leave because of his habits. In the spring of 1905, they went to an apartment house in Philadelphia, and thence to a boarding house where they lived until February, 1907, when she left him and was away a month.
The immediate cause for her leaving him at that time was, according to her story, that he and another boarder in the house laid in a case of beer which they set out to finish on a Saturday night. When she saw they were getting drunk, she left out of fear of a repetition of three past experiences that she had had during their then two years of married life. She went to her mother's in New York and then to a cousin's in the same city, and, after the lapse of a month, she returned to her home. Her husband followed her promptly and persistently and in a penitent mood, and, upon his promises not to drink and not to approach her maritally when under the influence of liquor, she went back; and this latter promise she says he kept for many years, and until shortly before she left him for the last time. He did not give up drinking. The periodicals continued thereafter through their cohabitation, not, however, to the same extent nor as, often as before. Sometimes there would be an interval of four months and more. Once while drunk at; this house he flourished a revolver and set fire to a paper basket as a result of which she fainted.
Upon her return to her husband's apartment, they remained for a month, and then moved to Collingswood in this state, and thence to Ventnor for the summer. In the fall they returned to Philadelphia and stayed until March of 1908, when the petitioner again left. At that time, she says, he had a violent spell after drinking when he threatened to smash and break things, and that he threw things around; that he was fighting full, but that he did nothing to her, except, as usual when drunk, he used abusive and profane language, and she left after consulting a lawyer. She took a position as governess in New York, and, after an absence of five months, she was persuaded by her physician to return upon her husband's assurance that he would mend his ways.
After a short time spent in the hospital and a few months' visit to the defendant's mother's home, they again moved to Collingswood in the fall of 1908, where they lived until March, 1911, when she left again. There they lived in three rooms, light housekeeping, for a year and a half, and then they took a house. While living in the rooms at Collingswood, the petitioner says her husband was kind and good to her, that she began to feel that their married life would be harmonious, and that she finally persuaded him to furnish the house next door. She said things went along all right until the spring of 1911. Then they got bad again in two ways, viz., that her husband was drinking, and that his mother was then living with them, and had been since the fall previous. It does not appear that he was drinking heavily. The impression made by her testimony is that he was indulging but little, and that she found no fault on this account. The real cause of the petitioner's discontent at that time was the mother-in-law's presence and interference. The petitioner experienced happiness when alone with her husband in the three rooms, but the house was not large enough for her and his mother. The mother-in-law found fault with the way she kept house, and it was difficult for her to please both her husband and his mother, and in this respect, as she says:
"Things got worse and worse, and it was hopeless. It was two against one, and I am not the kind that fights, and getting ill by it, so I lost my courage, I had to fight, and it was very objectionable. * * * I simply thought it was hopeless and there was nothing to do but to eliminate myself, because both of them treated me as though I was a servant."
It appears also that the mother-in-law was dissatisfied with living in the country, and was constantly urging her son to move back to the city. To this the petitioner seriously objected, because, as she says, she had been trying for many years to get a home, and "I wanted to remain in our little home." She said there was not any one particular thingthat led to her going; that it was not pleasant to have her mother-in-law live with her, and to submit to her constant interference. She spoke to her husband about it, and he replied that he did not want to have any trouble and unpleasantness; that it was his mother, and he was sorry; she was elderly, and to let her have her own way; and the petitioner says that she felt there was a good deal in that. She says further that the mother-in-law was jealous of her because she could control her husband and complained that she humored him, which the petitioner says was her way of keeping things smooth. At the same time, she says her husband was temporizing with both of them, and that the petitioner did not like that. "That it was not pleasant. I took it, but that was the kind of life I could not live, that kind of life where I had to fight to get along with people." The defendant saw her make preparations to go, and urged her not to do it.
The petitioner mentions only one particular occasion when her husband got drunk at Collingswood. That was on a Decoration Day, 1910, when he had invited his foreman and assistants of the laboratory of the Camden Iron Works to his house. There was considerable drinking, no doubt, and the petitioner joined in the party, at least to the extent of washing the glasses and cracking ice. She says that after working like a slave all clay long she got tired and cross when she saw his condition. He slipped while trying to steady himself by a newel post. Then she told him he must not have anything more to drink. He pushed her aside and cursed her, and told her he would show her who she was. The petitioner picked up a bread knife and turned on him, saying:
"I'll show you who I am. Will you behave yourself or not? Am I your wife or your servant?"
He cowed behind Mrs. Spann, who was in the kitchen, saying, "Oh, Isabel! She'll hurt me." She could intimidate him, she stated, and she characterized the episode as "nothing but an unpleasant quarrel." Mr. and Mrs. Spann remained to dinner. Things were unpleasant, but evidently the matter was patched up quickly. Mrs. Spann seems to have thought little of this occurrence, regarding it as a likely happening under the circumstances. The petitioner dwelt at considerable length upon the happening of that day. The fact that she laid so much stress upon it as a grievance leads me to the belief that it had become an unusual occurrence, and that the defendant hud checked himself considerably in his drinking habits after they had moved to Collingswood in 1908. At all events, it does not appear, except in the most general way, that after that time he drank except moderately—excessive in his wife's eyes perhaps—except upon the occasion just mentioned, and upon one other to be spoken of later.
The petitioner returned to her husband on Decoration Day, 1912. When she left him the year before she again took up a position as governess. Her husband wrote her frequently imploring her to return, and called upon her for that purpose at Christmas time, and by his letters and verbally sought a reconciliation, promising that they would be happy together if she would only come back. The petitioner did not return at once, because, as she says, she was distressed in mind and heart and that she would return only upon condition that her mother-in-law would do the housekeeping, so she would not find fault. In the meantime, the defendant and his mother moved to No. 406 Haddon avenue, Camden. In about a week the petitioner says her husband told her she had humiliated him and that he bad lost all interest, but that he would go through with the then present arrangement, that a man had to be honorable, and then, she says, "Things went on fairly well." There was but one really serious occurrence during her short stay. The defendant's brother was a guest, and one night the two started out together for a "party." The petitioner asked to be taken along; but she said she realized that she was not a successful entertainer, because it was very hard for her to drink fancy drinks, the highballs. The "party" was too tame, and they went home early. The following week the two men went out alone, refusing to take her. They returned about 2:30 in the morning. When her husband entered the bedroom she pretended to be asleep. She realized that he was drunk, from the way he dropped his shoes and clothing around, which she said was not his habit, as he usually folded things up carefully, and was generally a very neat man. She tried to get him into bed, when he threw his arm across her throat and tried to choke her to compel her to submit to him. She got from under his arm to the other side of the bed, when he lunged at her and tore her nightclothes off. She escaped into the hall, called his brother, and then went into his mother's room for the night. She says he went around saying:
"I was his to throttle. If he could get his hands on me he would threaten me within an inch of my life."
I have some misgiving as to whether this detail of the night's happening is not somewhat fancied and embellished. There is, of course, no corroborating witness, and the fact that the petitioner did not leave her husband at once, after such a brutal attack, makes me hesitate to accept it in its entirety. From aught that appears, it was never mentioned by either of them afterwards, and their relations seem to have been uninterrupted by it. A few days later the petitioner was taken ill with what she thought was awrench that she had given herself when getting away from her husband. In another part of her testimony she says that she was suffering from peritonitis while at the Haddon avenue house, but it is not clear whether the illnesses were one and the same. Dr. Lippincott was called in and was told by the defendant to take care of his wife and do what ought to be done. The following Sunday afternoon they went for a walk, pleasantly I assume, and her husband asked her what she thought about her condition. Dr. Lee, who had succeeded Dr. Lippincott, doubtless had informed the defendant of his wife's serious condition and that an operation for the removal of a deceased ovary was necessary for her cure. The defendant evidently had little confidence in the surgeon's knife, and had often expressed himself as opposed to an operation. On that afternoon they discussed the matter, and he told her he did not think that she need take the doctor's word as to her condition; that doctors played on the imagination of women; and that she was suffering from a case of nerves. He advised her to stand the pain and to obtain temporary relief by the use of morphine, and she said they let it go at that. She grew worse, and on complaint her husband would put if off as just nerves and imagination., On the following Sunday afternoon the petitioner had a heart-rending few minutes. She was lying on the bed, when he said to her:
"Oh, things are all wrong! Laws are not right to make a man live with a woman in your condition,"
—which she resented, calling him heartless and asking why he said such things to her, and that he could not say it if he loved her to which he replied, "That's just it, I don't" And when she asked him, "Don't you love me any more?" He said, "That's about it," that she had humiliated him, and ho could never forget it, and that he would never live with a woman who had to have the operation that she had to undergo. "Then why don't you leave me?" she asked. His answer was, "A man would not do that." Whether these things were said dispassionately or in anger, and whether he was irritated by something she had said—and she was at times irritable according to her admission—is not disclosed. They had another spat the following Sunday. His mother was about to return from Washington, and he had expressed to the petitioner that he liked the way she had been keeping house during her absence; that she had managed the money better and suited his taste a good deal better than his mother could do, and when she came home wanted her to take hold and to discharge the maid. She suggested that they break away from the mother, and take an apartment where she could do her housework; that the mother and they obtain apartments in the same building, so that they would not be leaving her alone; that she could carry on her work as she liked, and the petitioner and the defendant as they liked, to which he replied:
"I won't do any such thing. You can either accept my conditions or get out."
And to that she retorted:
"After what you said last Sunday not loving me, and saying this now, I think I will have to decide to accept your condition and get out," and cautioned him to "remember in a few weeks what you have said."
In his anger he threw a shoe tree toward her, but not at her. From that day on for the following six weeks she says they were civil and polite to each other, but that was about all. They had no quarrels, and no further relations; but, according to the petitioner, when the defendant realized that she had decided to accept his ultimatum and get out, he begged her not to go, saying that nobody could be a better wife than she was, that she was good and sweet and loving to him, everything that could be wanted in a woman, and he realized that he had not done right, and if she were determined to go would she not come over and visit and promise to come back to him? She told him she could not stand it physically or mentally, but that she would try to come back, but wanted to think about it. He gave her $10 to pay her fare, and she left in March, 1913.
I believe that I have detailed all the wretchedness of this unhappy couple as related to me by the petitioner, and I feel quite sure that, although it was conscientiously given, it was naturally biased and partial to her cause. She only told of her misery. Of her weeks and months and years of happiness she made little mention. Had that side of the story been told with as much elaboration as the other, I am confident that the complexion would have been materially changed. In many respects the petitioner's tale of sorrow is in sharp conflict with the contention that she was obliged to, and in fact did, leave her husband because of his cruelty. His conduct toward her in the early periods was certainly reprehensible, and her experiences were almost intolerable to a lady of her refinement and sensibility. After they had moved to Collingswood in 1908, he steadied himself, and for years, as she admitted, his deportment toward her was "passable." I think she could have, upon reflection, expressed herself more favorably. Her husband had an aged mother to whom he was devoted, but no more so, I believe, than he was to his wife. She withdrew from cohabitation because of the mother-in-law's influence over the son, and the constant strife between the two women. She was not fearful of him as she confesses. She was the master both persuasively and coercively if she chose to exercise her power.Life with him was not unbearable. Sihe was willing and anxious to live with him, but in their own home and alone, where she felt confident they could be happy. During the last ten months they lived together the cause which led to her previous dissatisfaction and separation was still an active factor. His assault upon her while drunk in the summer of 1912, minor or major, was forgiven or forgotten. He was unsympathetic with her in her illness, but this may be ascribed to his fear or abhorrence of a surgical operation, or want of confidence in the diagnosis of her ailment and a belief that her complaints were imaginative due to nervousness. He chided her unfeelingly about her physical ailments, and in her distressed condition sought to impose upon her harsh household duties, and brusquely gave her the alternative of leaving him, if she did not comply, which, however, lie withdrew and regretted and so expressed himself before she left. Her said experiences were, of course, highly unpleasant and disagreeable, but singly or collectively they did not constitute extreme cruelty, as that offense is defined by the authorities. Cook v. Cook, 11 N. J. Eq. 195; Thomas v. Thomas, 20 N. J. Eq. 97; Laing v. Laing, supra; Close v. Close, 24 N. J. Eq. 338; English v. English, 27 N. J. Eq. 579; Black v. Black, 30 N. J. Eq. 228.
To summarize: He drank, and sometimes to eixcess, and disgustingly vomited and soiled the bed periodically for three years. He insisted when drunk upon the conjugal embrace—"mauling" the petitioner characterized it. He gave promise of getting drunk in February, 3907, when she first left him. A year later, when she again left him, he was "fighting full" and "threw things around" and "threatened to smash things," which he did not do, nor did he touch or threaten his wife. Then we encounter a long term during, which nothing extraordinary happened until the summer of 1912, when he choked his wife and out of her presence "threatened her within an inch of her life." In the meantime and until the separation, he drank some, but he did her no barm, nor threatened to do any. On Decoration Day, 1910, he cursed at her, but the wife at that time was the one who threatened bodily harm and subdued him. She felt compelled to leave him in March of 1911, because of his unsympathetic attitude toward her in her relations with his incompatible mother. He refused his consent that she undergo a dangerous operation, and he gave her the alternative of complying with harsh domestic terms or quitting him, which he abjectly and sincerely withdrew before she finally left. These are not acts of extreme cruelty. The only things that savor of that is the flourish of the revolver in 1906 and one incident of 1910, when he choked her, and these single and isolated acts of violence are not extreme cruelty according to the cases, even when taken in combination with the other circumstances. As to that incident, I was impressed during the trial that the testimony of the petitioner would have been more nearly accurate, had it been modified. Moreover, she did not feel compelled for her safety to leave, nor did she in fact separate because of this.
For a long time before the petitioner left her husband, she was and had been suffering from an organic disorder which undoubtedly led to a disturbance and aggravation of her naturally nervous temperament. I think to this and a resultant chronic irritability may be attributed much of the infelicity of this couple. Had she been a sound, strong, and healthy woman, things that grieved her doubtless would have had only a passing notice. Now a word to the drinking habits of the defendant. He was not a drunkard. Nor do I believe that he was the heavy drinker the wife pictures him to have been. He occupies, and has for years, a responsible position with the Camden Iron Works, and was sober, industrious, and attentive save for the occasional Saturday night drinking bouts, which seem never to have prevented him from resuming his labors on Monday morning. It seems to me that, if he indulged as heavily as she represents, at least one witness could have been produced to say so.
My judgment is, as it was at the conclusion of the hearing, that a case of extreme cruelty within the meaning of the statute is not made out by the proofs, and that if the petitioner's prayer had been for a divorce a mensa I would not have been justified in granting it.
Nothing occurred after the separation that can be construed into a statutory desertion. The petitioner went to New York and again engaged as governess. She submitted to an operation, which was successful. While in the hospital she wrote to her husband for $200, offering her diamond engagement ring as security. Heartlessly he accepted the offer. She did not forward the ring and he did not send the money. In June (1913) the petitioner went to her dentist in Camden and there telephoned her husband of her mission, and that she was going to take the next train back to New York. He met her at the Broad Street Station in Philadelphia, as she was about to take the train. He pleaded with her to come back, but she held out that she had gone through too much and felt that it was useless to try any more; that she had tried and failed. The following August she wrote to him for support. In his letters he urged her to return, saying that he realized he had taken too much for granted. She said she paid no attention to them. He agreed to send her $40 a mouth, which he did until January, 1915, when the payments ceased. There is no explanationwhy, but it is intimated that the Camden Iron Works had become bankrupt about that time, and it may be that his finances were impaired.
In August, 1015, the petitioner went to Cleveland, where she remained two years, returning thence to New York, where she has since resided. She wrote to her husband asking if he wished to see her before she left to talk things over as to how they should arrange their affairs. To this he made no answer, and she did not hear from him until in July, 1916, when he wrote that he intended to attend a foundry convention then soon to be held in Cleveland, and that he wanted to talk things over with her. She said there were letters backwards and forwards pleasant and agreeable. His were affectionate, but they seemingly did not inspire confidence in his sincerity. She says it was all very vague, that he did not really and directly ask her to come back, that he simply suggested that they get together. Whether he went to Cleveland does not appear; but, at any rate, they did not meet. Christinas following he sent her $25 from the hospital where he was confined due to an automoblie accident. He wrote her that he was lonely, and that he had no place to go, and she replied that she was sorry, that she could perfectly understand that he needed her, that they had been separated so long, that things seemed to be very hopeless between them, and that if he would help her financially she would try and do what she could in Cleveland to have their marriage broken. He wrote her affectionately again once or twice, but evidently did not take kindly to her suggestion. In June, 1917, she wrote for a loan of $15, to which he made no reply.
Shortly thereafter, he filed a petition for divorce on the ground of desertion, to which she cross-petitioned on the same ground. When the case was about to be tried in 1918, the petitioner telephoned her husband that she had borne so much and that he should be a gentleman and permit her to obtain the decree. He asked for a personal interview, to which she reluctantly consented, saying it would only make the heart ache by stirring up and going over things again, that she though it was hopeless to talk it over any further, and that nothing could be done. However, they met at the Camden. Ferry. Over the dinner table at the Broad Street Station he pleaded long and earnestly for a reconciliation; but she gave him no promise, other than that she would consider the matter. She wrote him that, if he were really unhappy, that if she was the only one who meant what he had said she did, to him, and that if he really did care for her "and not the other young woman," he should wire her and she would notify her attorney to discontinue. The following day he telegraphed and wrote to her, and as a result the suit was withdrawn. Shortly afterwards the defendant met with a second automobile accident, and, in response to a note from his nurse, the petitioner called upon him at the hospital, where he received her sullenly. For a while they corresponded, and affectionately—the letters are in evidence. He promised her an allowance of $50 a month, and the inference is that he sent it regularly; but he made no attempt to avail himself of his wife's willingness to resume the marriage state. They did not meet again until at this trial. The defendant's indifference after the former suit was dropped is inexplicable. I am unable to find evidence of conduct since the separation and until this suit was brought that amounts to willful, continued, and obstinate desertion for a period of two years.