Opinion
Decided January 23d 1933.
1. It is a well settled law that it is not necessary to prove that a defendant was seen in the act of adultery in order to justify a decree. If it be proven that the defendant and the alleged paramour were amorously inclined towards each other and disposed to commit the crime charged, a showing that they had an opportunity to gratify their desire under circumstances which indicated that they then committed the crime charged, will support a decree of divorce.
2. The facts proven in this case show the guilt of the defendant beyond any reasonable doubt. They are wholly inconsistent with her innocence, for there was constant intimate association between the defendant and co-respondent, their association was open and brazen and the evidence sufficiently shows a guilty inclination and ample opportunity to perform the guilty act.
On appeal from a decree of the court of chancery advised by Advisory Master Moore, who filed the following opinion:
"This is an action for absolute divorce, on the ground of adultery.
"The defendant denies the adultery and alleges by way of counter-claim that the petitioner was guilty of extreme cruelty.
"The testimony of the petitioner is to the effect that the parties were married on May 3d 1922; that on January 9th, 1929, the petitioner left the defendant and the parties have not lived or cohabited together since that date; that the defendant constantly associated with the co-respondent, Tattersall, despite the importunities of the petitioner that the defendant give up her association with him. The petitioner testified in considerable detail as to the frequent meetings between the defendant and the co-respondent, who is a married man; their many auto rides alone together during the hours of the evening, and occasionally extending to the early hours of the morning. The petitioner testified concerning his many attempts to persuade the defendant to give up her association with the co-respondent and to the fact that the defendant refused so to do. On one occasion petitioner endeavored to pull the defendant out of the co-respondent's automobile.
"The testimony of the petitioner is amply corroborated by witnesses to whom I give credence. Certain of the witnesses testified concerning their efforts to induce the co-respondent to stop associating with the defendant. Among these witnesses were the probation officer of Passaic county, two of his associates and the brother of the co-respondent. The co-respondent admitted to these witnesses and others that he was in love with the defendant and that he was frequently alone in her company. In the presence of the defendant, he stated to Mr. Gourley, one of the probation officers, that he loved the defendant; on which occasion the defendant broke down and cried. This is corroborated by the other officer.
"Mary Zeliff testified that she had seen the defendant and co-respondent parking in an automobile; that they sat close together and acted in an affectionate manner, and that she saw the arm of the co-respondent over the back seat. She further testified that she had often seen the co-respondent and defendant together at the house and in the automobile.
"James Zeliff testified to the effect that since January, 1929, he had frequently seen the co-respondent with the defendant at her home, after the petitioner had left, and that he had seen them there mornings, afternoons and evenings, and that sometimes the co-respondent remained after midnight.
"Elsie Kraus, a neighbor, bore witness to the fact that she had often seen the defendant and co-respondent together at the house and that they remained there until the early hours of the morning and sometimes as late as two o'clock A.M. She saw the co-respondent have his arm around the defendant on the back of the automobile seat.
"Probation Officer James J. Mahoney testified that he had told Tattersall he had no business going around with the defendant; and that in reply Tattersall had stated that he had a perfect right to go around with the defendant, that he was in love with her and would not stay away from her.
"The defendant in her testimony denies the commission of adultery. She admitted frequent associations with the co-respondent both before the petitioner left the home and afterwards. She testified to the fact that Mrs. Tattersall, wife of the co-respondent, struck her in the presence of the co-respondent on an occasion when Mrs. Tattersall caught the defendant and the co-respondent parked together in an automobile. In answer to the question, `what would [Mrs. Tattersall] say?' the defendant answered: `She said that she came there to fight for the father of her children.' The defendant admitted that she still goes out riding in the automobile with the co-respondent. The defendant testified to certain alleged acts of cruelty. There was no corroboration whatever as to cruelty.
"I do not consider defendant's testimony credible either as to the denial of the alleged adultery nor in relation to alleged cruelty by her by way of counter-claim. The co-respondent, Mr. Frederick R. Tattersall, testified that he had been associating with the defendant for about eight years and that his wife wanted him to stop associating with the defendant, and that nevertheless he continued to associate with the defendant. He denied that he had committed adultery and that he ever said he was in love with the defendant. He has contradicted certain statements made by witnesses for the petitioner.
"I attach no credence whatsoever to the testimony of the co-respondent so far as it relates to these denials.
"It will be noticed that there is no direct testimony to the commissions of adultery. The proofs are wholly circumstantial but in my opinion they are sufficient to prove the offense.
"This evidence is sufficient to meet the requirements laid down by the court of errors and appeals in the frequently cited case of Berckmans v. Berckmans, 17 N.J. Eq. 453, which holds that the evidence of adultery must be such as to satisfy the human mind, and leave the careful and guarded judgment of the court free from any conscientious and perplexing doubts as to whether the charge be proved or not. In Farrow v. Farrow, 70 N.J. Eq. 777, affirmed by the court of errors and appeals, the rule as to circumstantial evidence is laid down thus: `It is well settled law that it is not necessary to prove that a defendant was seen in the act of adultery in order to justify a decree. If it be proven that the defendant and the alleged paramour were amorously inclined towards each other, and disposed to commit the crime charged, a showing that they had an opportunity to gratify their desire, under circumstances which indicated that they then committed the crime charged, will support a decree of divorce.' This case has been constantly followed and applied by the courts. Pfender v. Pfender, 103 N.J. Eq. 367; Atha v. Atha, 94 N.J. Eq. 692; Torrens v. Torrens, 94 N.J. Eq. 480. In the last named case the court said: `There is no direct evidence in the case of the commission of the act of adultery, and the charge is sought to be established circumstantially, which, under the well-recognized rule, can only be done where two facts are established — a criminal disposition or desire in the mind of both the defendant and his particeps criminis, and an opportunity to commit the crime. Berckmans v. Berckmans, 16 N.J. Eq. 122, and Black v. Black, 30 N.J. Eq. 228. '
"The facts proven show the guilt of the defendant beyond any reasonable doubt. They are wholly inconsistent with her innocence. It was clearly established, and without any substantial denial by either the defendant or the co-respondent that there was a constant intimate association between them, which was over the protest and the pleadings of the petitioner and the co-respondent's wife. Almost daily the defendant went out automobiling with the co-respondent and had a constant practice of being alone with her in her home, on several occasions to hours extending to the early morning. Their association was open and brazen. The evidence of acts of affection between them was slight, but the statement of the co-respondent in the presence of the defendant, that he loved the defendant and refused to give her up, sufficiently shows a guilty inclination, and his frequent solitary meetings with her in her home furnished ample opportunity, and from these circumstances the necessary inference is that of a guilty relationship.
"The defendant having failed to establish by satisfactory testimony or corroboration the allegations by way of counter-claim, I shall advise that the counter-claim be dismissed. Since in my opinion the petitioner has established by competent and credible testimony the essential allegations set forth in the petition, I shall accordingly advise a decree for the relief therein prayed for."
Mr. Edward A. Murphy, for the appellant.
Mr. Elliot Chapman, for the respondent.
The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court of chancery by Advisory Master Moore. For affirmance — THE CHANCELLOR, TRENCHARD, PARKER, LLOYD, CASE, BODINE, DONGES, BROGAN, HEHER, KAYS, HETFIELD, WELLS, KERNEY, JJ. 13.
For reversal — None.