Opinion
Submitted February 12th, 1932.
Decided May 16th, 1932.
1. The testimony of the petitioning wife makes out a clear case of extreme cruelty.
2. The rule of corroboration only requires that belief in its truthfulness must find support in the testimony of others, or of surrounding established circumstances. This requirement has been met.
On appeal from a decree of the court of chancery advised by Advisory Master Moore, who filed the following opinion:
"This is a suit for absolute divorce based on charges of extreme cruelty under the 1923 supplement of the Divorce act. P.L. 1923 p. 494.
"The petition was filed December 11th, 1930.
"The acts of cruelty complained of in said petition took place six months prior to the date of the filing of the petition.
"The defendant filed an answer and counter-claim on January 17th, 1931. In the counter-claim the defendant denies the allegations of extreme cruelty and as a separate defense alleges condonation.
"The parties cohabited from the date of the marriage and up and until June 12th, 1929, at which time the petitioner left the defendant because of a brutal assault committed upon her on the previous day. The petitioner returned to live with the defendant in January, 1930, and lived and cohabited with the defendant until about March 20th, 1930, at which time the petitioner left the defendant because of extreme cruelty accorded her by the defendant. The parties have not lived or cohabited together since that date.
"There is credible testimony that the defendant's ill temper spent itself in a number of brutal assaults upon the petitioner by throwing her down to the floor and by beating her, and as a result thereof she suffered considerable pain.
"Credible testimony was had to the effect that on several occasions the defendant unjustly accused the petitioner of unchastity and that the defendant used vile language toward the petitioner. To these acts of extreme cruelty, as well as to the effects thereof upon the petitioner's health, the petitioner testified in great detail.
"The petitioner is supported by her mother and cousin who gave proof of the defendant's oppressive conduct toward her, and of certain brutal assaults and attacks made by the defendant upon the petitioner; also as to the defendant's swearing at the petitioner and making unjust accusations of infidelity to the petitioner in their presence, and as to the effect thereof upon the petitioner. In addition thereto the mother testified in substance that on two occasions the defendant admitted beating the petitioner. The mother further testified that the defendant stated that the petitioner "deserved more."
"The petitioner is corroborated in her testimony by witnesses as to certain of the acts of extreme cruelty and the effects thereof upon the petitioner, and also as to her rundown physical and mental condition. I am convinced that their testimony is worthy of belief.
"The brother of the petitioner, an attorney-at-law of New Jersey, testified to the effect that he had on two occasions seen the bruises and marks on the petitioner's face, one of these occasions being in June of 1929, at which time the brother observed the hysterical condition of the petitioner.
"There is no credible or convincing testimony offered in support of the contention of the defendant that the alleged cruelty had been condoned by reason of sexual cohabitation since March, 1930.
"The petitioner denies having had sexual relationship with the defendant since March, 1930, which was the date on which the petitioner left the defendant, and further testified that the last sexual relationship took place probably a month before March, 1930.
"The conduct of the husband toward the petitioner justifies the belief that as a result of such conduct a condition existed of extreme discomfort and wretchedness which incapacitated the petitioner to discharge her duties and seriously endangered her health, and that for the petitioner to be compelled to live under such conditions with her husband, the petitioner will be rendered so uncomfortable as to incapacitate her from discharging her matrimonial duties.
"The testimony of the wife makes out a clear case of extreme cruelty. The rule of corroboration only requires that belief in its truthfulness must find support in the testimony of others, or of surrounding established circumstances. This requirement has been met.
"Accordingly, I shall advise a decree for the relief prayed for in the petition and for a dismissal of the counter-claim. See Lasker v. Lasker, 91 N.J. Eq. 352; Meek v. Meek, 92 N.J. Eq. 23; Orcutt v. Orcutt, 94 N.J. Eq. 303; Wines v. Wines, 97 N.J. Eq. 55; Ross v. Ross, 105 N.J. Eq. 170; affirmed, 106 N.J. Eq. 277; Hauenstein v. Hauenstein, 95 N.J. Eq. 34; Hill v. Hill, 97 N.J. Eq. 237; Coe v. Coe, 97 N.J. Eq. 57; Foote v. Foote, 71 N.J. Eq. 273; Cavileer v. Cavileer, 94 N.J. Eq. 160."
Mr. Nicholas LaVecchia, for the appellant.
Mr. Henry Marelli, for the respondent.
The decree appealed from will be affirmed, for the reasons expressed in the opinion filed in the court below by Advisory Master Moore.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, CAMPBELL, LLOYD, CASE, BODINE, DONGES, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, KERNEY, JJ. 14.
For reversal — None.