Opinion
01-07-1909
ARROWSMITH v. ARROWSMITH.
John P. Lloyd and Alan H. Strong, for petitioner. Charles T. Cowenhoven, for defendant.
Petition for divorce by William Arrowsmith against Susan B. Arrowsmith. Petition dismissed, with leave to defendant to file a cross-bill for divorce from bed and board.
John P. Lloyd and Alan H. Strong, for petitioner.
Charles T. Cowenhoven, for defendant.
WALKER, V. C. The parties to this suit were married in 1872, and lived together on afarm in Monmouth county for 32 years. They have three sous, who are all of age and self-supporting. In November, 1903, the husband and father contracted to sell his farm to one of his children, Wood Arrowsmith, and he and his wife joined in a deed to the son, immediate possession of the farm being given to him, but the parents resided on the farm until the following spring, at which time the petitioner went away, but his wife refused to accompany him. He filed his petition for divorce in this cause in August, 1907. The defendant answered, and alleged that during all of their married life she had received the most unkind treatment from her husband, being subjected daily to fault-finding, cursing in the most profane manner, and being denounced without cause or provocation to such an extent that during her whole married life her existence had been made most miserable.
This general averment is coupled with an allegation of harsh and unfatherly treatment of the children of the parties, and gives some specific instances of harsh treatment. The answer does not characterize the treatment of the defendant as extreme cruelty. Good pleading requires that this should be done. Davis v. Davis, 19 N. J. Eq. 180, 182. However, no exception was taken to the answer as a pleading, and the parties went to hearing without objection. Only one personal attack was made by the complainant upon the defendant, as I recall, and that was many years ago. It was when his son, Wood, was six or seven years of age. The petitioner knocked him off his chair at the breakfast table and the mother interfered, whereupon he seized her, and dragged her out of doors. His conduct to his children at all times was most brutal, besides his cursing and swearing at them inordinately. He frequently and severely whipped them without any real cause. He appears to have offended against his whole family unceasingly and at all times. Profanity was his greatest bane. When his wife went to church, he would call her a God damn fool, and he thrashed at least one of his sons for doing the same thing. Byron says his father would thrash him several times a year for no cause, and his mother would cry. She wanted him to go to school, and his father said that would make a God damn fool of him; that he would be just like all the rest of the God damn fools, and no more account than a Guinea nigger. Byron saw his father thrash his brother Wood for going to church and Sunday school. The father whipped his son Richard with whips cut from trees and anything he could lay his hands to. When Mrs. Arrowsmith would want money to buy clothes with, the petitioner would say she was the God damnest woman he ever saw. He frequently said that he would sell the place and go so God damn far away they would never see him again, and they could all go to hell. He drove all his boys from home. When ever the children were beaten, the mother would cry, and that would enrage the father, and he would curse and say that she was just like them. When the mother remonstrated with him for whipping his son Wood for going to church, he said: "God damn you, they take after you, running about. You are all alike, a lot of God damn fools and aren't worth three hurrahs in hell." Richard says that when the mother wanted to send him to school, the petitioner said: "You want to make a damn scoundrel and rogue out of him." This sort of conduct was not occasional, but constant. I have been loath to spell so much profanity into these conclusions, but have done so that it may be seen at a glance to what extent Arrowsmith offended in this particular. Men blanch when oaths are directed at them, and their conduct is execrated with profanity. Vile oaths of the blackest sort denounced by a husband against his wife must wring her very soul with anguish.
The sale of the farm from Arrowsmith to his son Wood came about in this way: At one time in January, 1904, when Wood was home, his father was going on as usual about selling the place, and Wood said that he would buy it. The terms were arranged, and Arrowsmith stayed home and worked about the place until April, when he went away, but came home every week. On July 27, 1904, he said he was going to remove, and his son Wood said to him that there was a home there as long as he lived if he would stop abusing his mother. After he left the place, the petitioner requested his wife to go and live with him, at one time claiming to have rented a part of a house from Alexander Gaston, and at another time claiming to have rented a house from Ephriam Rose, and lastly claiming to have rented part of a house from Charles N. Burlew. I do not believe that any of these alleged rentings were in good faith. Certainly those of the Gaston and Rose properties were not. Gaston testified that Arrowsmith asked him if he would rent him one-half of his house, which he said he would do, but nothing was said about the rent, and he did not take it. Rose testified that Arrowsmith asked him if he would rent him a certain house, and he said he would; Arrowsmith not having asked how much it would be and no terms were agreed upon. On both of these occasions he asked Mrs. Arrowsmith to go with him, but she refused, saying she could not, and this was for the reason that her health had been broken by his long continued abusive treatment. In December, 1907, Arrowsmith went to see his wife, and took Burlew and Peter Bennett along. On this occasion he asked his wife to go along, and showed her a receipt from Burlew for one month's rent of two furnished rooms in Burlew's house. He had the privilege of taking one or two more rooms and to stay as long as he wanted. He asked his wife two or three times to accompanyhim, and she said she could not. At this time Arrowsmith asked his wife about the affidavit she had made in this cause, saying that it was a lot of God damn lies, to which she replied that there was one or two things in the paper stronger than she had made them, whereupon he said they were all a lot of professional God damn liars. Just what things in the affidavit were stronger than she had made them was not pointed out by either side. I presume that she meant that counsel in drawing her affidavit had stated the particulars more strongly than she had stated them to him. His conduct on the occasion of his visit to the farm with Burlew and Bennett was characterized by profanity. He completely lost his temper, and I believe that he was simply trying to lay a foundation to absolve himself from the payment of alimony. About 1904 Arrow-smith paid Dr. Ervin a small bill for professional services bestowed by the doctor upon his wife in an illness occasioned, I believe, by the treatment of the husband, and he told the doctor that that would be the last God damn doctor bill that he would ever pay for her. This Arrowsmith also told his wife. Under the treatment she received from her husband, Mrs. Arrowsmith's health gave away, and she has been in poor health for the past 10 years. She was unable to go to court in New Brunswick where the hearing was had, and I went to the Arrowsmith farm that her testimony might be taken in my presence. She appeared to be broken in health and more or less of a physical wreck, a condition brought about, I believe, by her husband's abuse of herself and their children.
After Arrowsmith had left the farm, he wrote his wife a letter, which if not exactly a tissue of lies, contained two or three deliberate ones. The letter is dated August 1, 1906, and in it he says: "On my part I am willing to forgive and forget all that is past." Now, this was a covert lie, containing in it the implication that his wife's conduct toward him had been such as to call for forgiveness, which is not a fact; for, on the contrary, she had borne in patience and in silence about as much of hardship and reviling as any woman could bear. He also said, "In the past we have been happy," which, of course, is a palpable untruth. Again he says: "I now extend to you in all good faith an invitation to return to me." He admitted on examination that he wrote the letter on advice of counsel. This studied attempt to put himself in the right and to absolve himself from the consequences of a situation of his creation is unavailing. Barrett v. Barrett, 37 N. J. Eq. 29; Graecen v. Graecen, 2 N. J. Eq. 456, 466.
In Graecen v. Graecen, ubi supra, a decree of divorce a mensa et thoro was granted the complainant for life, and that, too, in a case where the parties, as in the present one, had lived together for upwards of 30 years and raised a family of children. In that case there was no actual physical violence visited upon the complainant. There were some threats and at least one assault without a battery, which consisted of the husband chasing his wife with an axe, and raising it above her and threatening to split her down. The report of the case does not show how long it was before the parties separated when this axe episode occurred, but I take it to have been a considerable length of time prior to the separation. Chancellor Pennington says at page 465 of 2 N. J. Eq.: "It is further objected that many of the transactions referred to are too far back, and should not now be brought forward to prejudice this cause. There is some weight in this objection, and if it were an isolated occurrence long since passed by, on which alone the cause rested, I should think it ought to prevail, and especially so if a different course of treatment had of late years been pursued. But the evidence is that the bitterness and ill feeling of the defendant towards his wife has not only continued, but been on the increase up to the time of her leaving her home. It is the connection which exists between the acts of oppression on the part of this husband in former days and now, showing a series of injustice and wrong on his part, and of long endurance and forbearance on the part of the wife, that gives force and propriety to this evidence." The learned Chancellor says that this case (Graecen v. Graecen) is stronger than Clutch v. Clutch, 1 N. J. Eq. 474. In that case (Clutch v. Clutch) only one act of violence appeared; the defendant "having taken her [his wife] up forcibly, and turned her out of doors." So in the case under consideration there is but one act of violence that I can recall, namely, the occasion, many years ago it is true, when Mrs. Arrowsmith interfered with her husband for knocking their young son off a chair at breakfast time, when he laid hands upon her and dragged her out of doors.
In Burton v. Burton, 52 N. J. Eq. 215, 27 Atl. 825, Vice Chancellor Green seemed to be of opinion that the refusal of a husband to live with his wife if that had or tended to have a serious effect on her health is extreme cruelty. The case was brought in 1893, and two acts of personal violence, one committed in 1869 and the other in 1874, were relied upon. The Vice Chancellor goes on to advert to the fact that no one who knew or lived with or near the parties during their married life of 30 years was produced to corroborate a single act of personal indignity or violence, while the daughter, who was always with the mother, testified that she never knew her father to use violence toward her mother, and he emphatically denied the statements, and they were, the Vice Chancellor found, condoned if they ever occurred. This case I take to be an authority favorable to the contention of Mrs. Arrowsmith.
In Thomas v. Thomas, 20 N. J. Eq. 97, it was held: "Actual personal violence, not very great, nor such as standing alone would warrant a decree of separation, when accompanied by inhuman, coarse, and brutal treatment towards the wife, rendering it unjustifiable that she should be compelled to live with her husband, will entitle her to a decree of divorce a mensa et thoro, and to alimony."
In the leading case of Close v. Close, 25 N. J. Eq. 526, the Court of Errors and Appeals held that where the husband has inflicted upon his wife "any physical injury accompanied by such persistent exhibition of ill feeling and opprobrious epithets as will endanger her health, or render her life one of such extreme discomfort and wretchedness as to incapacitate her to discharge the duties of a wife, the decree of separation should be pronounced." Said Mr. Justice Van Syckel, speaking for the Court of Errors and Appeals in this case (Close v. Close, 25 N. J. Eq. 528): "If the body is the only thing to be regarded in these cases, and the purpose and object of the court is to avert from the wife injury to her life, members, or health, there is no reason why the husband should be permitted to inflict an injury in one way which he would be restrained from doing in another."
In Black v. Black, 30 N. J. Eq. 215, 221, Vice Chancellor Van Fleet remarked: "To justify a divorce a mensa et thoro, actual physical violence need not be proved, but such conduct by the husband must be shown as will justify the court in believing that, if he is allowed to retain his power over his wife and she is compelled to remain subject to him, her life or health will be endangered, or that he will render her life one of such extreme discomfort and wretchedness as to incapacitate her to discharge the duties of a wife." The doctrine annunciated by Vice Chancellor Van Fleet in Black v. Black received the approbation of the Court of Errors and Appeals in Smith v. Smith, 40 N. J. Eq. 566, 596, 5 Atl. 109, 122.
It seems that there is no reported case in this state in which a decree for divorce a mensa et thoro has been granted in which there was not at some time some physical violence used; but it seems that an act of physical violence is not absolutely indispensable to the granting of such relief. The test in the last analysis seems to be whether continued cohabitation will endanger the wife's life or health, or even that it will render her life one of such extreme discomfort and wretchedness as to incapacitate her to discharge the duties of a wife. Certainly these conditions are present, all of them, in this case. The wife's health is already broken down, and broken down from no other cause than the long continued and unremitting ill feeling, opprobrious epithets, coarse, brutal, and profane cursing, and other ill treatment by Arrowsmith of his wife, and, I may add, his family; for to my mind about as great an act of cruelty that a husband can be guilty of toward his wife is to unmercifully thrash her children without cause, or at least without adequate cause, and to turn them out of doors. This Arrowsmith did while his wife stood by, helpless and crying. I know that they endured all this for years, and I have not overlooked the fact that the boys are all grown and of age. The length of endurance is not condonation, but rather evidence of aggravation.
Assuming that Arrowsmith acted in good faith in requesting his wife to go and live with him in the Burlew house, which I do not concede, I find nevertheless that his extreme cruelty toward his wife during their married life and cohabitation together amply justified her in refusing to leave the home and protection of her son Wood, and therefore the petition for divorce for desertion must be dismissed, with costs. On the authority of Costell v. Costell, 69 N. J. Eq. 218, 60 Atl. 49, Mrs. Arrowsmith may, if she chooses, file a cross-bill praying for a divorce from bed and board with alimony, and a decree therefor will be advised.