Opinion
No. 46-320.
02-26-1920
BAKLEY v. BAKLEY.
Eugene Schwinghammer and Louis A. Repetto, both of Atlantic City, for petitioner. S. Cameron Hinkl'e, of Atlantic City, for defendant.
Suit for divorce by George B. Bakley against Nellie May Haines Bakley. Divorce denied, but custody of children awarded to plaintiff.
Eugene Schwinghammer and Louis A. Repetto, both of Atlantic City, for petitioner.
S. Cameron Hinkl'e, of Atlantic City, for defendant.
JOSEPH THOMPSON, Advisory Master. The petition is filed by the husband for a divorce on the grounds of desertion, and asking to be awarded the custody of the children. There were four children born of this marriage, to wit, Irene, born November 4, 1911, now deceased, Ethel M., born November 4, 1901, George, born January 22, 1906, and Thomas, born October 4, 1913. These children are at this time, and have been for some time past, under the care and control of their father, the petitioner, with the exception of the oldest daughter, Ethel, who is 18 years of age, and was married during the summer of 1919.
The defendant by her answer denies that she deserted the petitioner in April, 1914, but admits that she separated from him in April, 1915, for the reason that petitioner at that time so conducted himself and abused defendant by 'insisting that she should indulge in certain immoral and degenerate acts that she was obliged to leave him. She further alleges in her answer that her husband was living in adultery with one Nellie Salmon, defendant further alleging that the petitioner was not a fit person to have the custody of his children by reason of the fact that he was living with said Nellie Salmon.
The petitioner alleges that his wife deserted him in April, 1914; that at that time he was employed by the Pennsylvania Railroad in Atlantic City, and his duties were such as to require him to work at night, sleeping and resting during the day; that on some date during said month of April, he came to his home in Atlantic City, and found his wife had removed the furniture from the house, and that she was lying on the floor in a state of intoxication, and her children were there with her; that she claimed she was sick, in consequence of which he reported the condition of things to the police department, and they sent a patrol wagon to the house, and she was taken from there to the hospital; that after her removal to the hospital she was pronounced to be under the influence of liquor, and was removed from there to the city hall, where subsequently her husband went, with his brother, and took her out, making an effort to have her go to his brother's house that night. She went to the brother's house, but not until the next day, remained there, according to the testimony of the husband and wife, for a short time, then went to the husband's father in Berlin, N. J., where she remained for less than a year, having the custody of her children, then coming to Atlantic City, on the invitation of the husband, who had rented a basement of some house in Atlantic City, but had not furnished the same, the husband claiming, however, that the wife had removed their furniture from the house they formerly occupied, and at that time had or should have had it in her possession. She came to Atlantic City with her children, and the husband made some provision for her maintenance, but according to the testimony of the wife this was very limited, and she was obliged to work herself to support them.
Some time after the wife returned to Atlantic City, the attention of the district superintendent of the New Jersey Children's Home Society was called to the fact that the two youngest children, left with their mother, were being neglected, the result of which was that they were taken, by the consent of the husband and the wife, from the custody of the wife, and taken back to Berlin, N. J., and left with the petitioner's father and mother. Since that time the children have been entirely away from the mother and in charge of the grandparents or with the father, except as she was permitted to see them under the direction of the court, at stated intervals, when they appear to have been taken to her home in Atlantic City, but this was not until after the petition for divorce was filed.
There is little or no testimony to support the husband in his contention that his wife deserted him. The testimony shows that they were not living in complete harmony. The husband alleges that the wife'shabits were such that she was frequently intoxicated. The wife admits that she was in the habit of drinking, but not until after being separated from her husband. The testimony of witnesses produced on the part of petitioner, special officers of the police department of Atlantic City, show that she frequented places where liquor was sold, and they saw her on several occasions sitting at the tables drinking with men and women, and that the places she frequented were of a very low order, and were in a measure under the surveillance of the police department.
The petitioner also produced a witness who was the owner of the house in which he was living at the time his wife moved the furniture away. She lived in the neighborhood, and was in a position to see the approach to the house from the street. She said it was the habit of defendant to carry beer from a saloon in the neighborhood, and on some days would be frequently going between the house and the saloon, and at times she has seen defendant intoxicated. There has been testimony introduced to attempt to show that her habits were correct with respect to sobriety, but the testimony has generally been from witnesses who have had scant opportunity to observe defendant's actions, and I am forced to the conclusion that she was in the habit of drinking and getting under the influence of liquor. The testimony shows that the husband was in the habit of drinking, but nothing suggests that he drank to excess or was in the habit of being intoxicated.
The wife, from the testimony of physicians, was not a strong woman, and at certain periods suffered to such an extent that it was necessary to call a physician, and in the month of March and again in the month of August, A. D. 1916, was obliged to undergo an operation, in which one of her ovaries and uterus were removed. This appears to have been the final outcome of a condition that had been present for probably years before.
There is no testimony to show that there was any effort on the part of the husband to try and get his wife to return to him, and for him to make a home for her and her children. On the contrary, shortly after his wife returned from Berlin, N. J., to Atlantic City, he took his three children and went to Camden, and took Mrs. Nellie Salmon, as his housekeeper, returning to Atlantic City in about one year, and from that time until the present she has remained with him in that capacity, as testified to by the petitioner and by Mrs. Salmon.
The wife in her testimony claims that the cause of the disagreement with her husband grew out of his friendship and affection for Mrs. Salmon. There is little or no testimony to corroborate the wife in this contention. The daughter, however, who is married to a man by the name of Parsells, claims that her father's relations with Mrs. Salmon were such that he was in the habit of occupying the same room in which Mrs. Salmon slept in during the night, the petitioner sleeping during the day, and that it was the habit of Mrs. Salmon to go in his bedroom during the day and lock the door and remain with him for a period of time.
There can, however, be but little reliance placed upon the testimony of the daughter, as it is clearly shown by the testimony of two officers of the police department that her conduct was that of a girl who was degraded and demoralized; that she was caught at one time in a demoralizing position, when she could not have been more than 17 years of age, and that she was on several occasions taken out of a saloon in company with another girl, when she was not much more than a child, and that the saloon was one frequented by colored people and also white people. The manner in which she conducted herself during the hearing was such as to leave in the mind of the master a very unfavorable impression, and I would hesitate to accept her statements uncorroborated.
The majority of the witnesses produced on the part of petitioner, as well as the defendant, were not such that were entitled to belief; there is a failure on the part of the husband, as I view the testimony, to show that there was such a desertion on the part of the wife as the statute contemplates, and, on the other hand, I am not satisfied that the wife has shown that what she has set up in her answer is true, that she produces little, if any, facts to corroborate her statements.
In view of all these facts, I have reached this conclusion, that the husband's petition for divorce on the ground of desertion should be dismissed, and that the defendant's answer should also be dismissed.
The only question that remains for me to consider is, What shall be done with the children? At the time they were with the mother after the home had been broken up, they were taken out of her custody by the society, because of her alleged neglect of them. They were afterwards returned to the husband, and he now has the care and control of them, and as he must provide for them, I have concluded that they will be better off in his care than in the care of his wife.
Application was made for counsel fee and alimony. I understand from counsel that this application was not pressed, that there was some understanding, and a counsel fee of $25 paid, but no alimony, on condition that the matter should be speedily heard. There was considerable delay in bringing the matter on to be heard, but this appears to have been with consent of counsel.
I am asked to recommend a counsel fee to the defendant's solicitor. In view of all the circumstances and the limited income of the husband, I would recommend that a counsel fee of $50 be allowed.
Respectfully advised.