Opinion
08-29-1907
BOYLE v. BOYLE.
M. J. Ready, for complainant Cecil McMahon, for defendant
Bill for divorce from bed and board by Florence Boyle against John Boyle. Finding for complainant.
M. J. Ready, for complainant Cecil McMahon, for defendant
HOWELL, V. C. The parties to this controversy were married on July 25, 1906. The complainant was then a little over 15 years old and the defendant nearly 55. Both parties were residents of Newark. The complainant lived with her mother on Washington street, and the defendant had rooms over a saloon on Market street. The complainant, who is spoken of by Dr. Crane, one of the witnesses, as "a child," at the hearing appeared to be a mere child in stature and development After the marriage the wife went to live with the husband at his Market street rooms. She had been there before with her mother, and knew what she might expect in the way of living accommodations. They seem to have lived together peacefully enough until the month of October following the marriage, when there came a break, caused undoubtedly by the husband's drunkenness, the result of which was that the complainant left her home and went back to her mother's. She staid away for two weeks, and then returned at her mother's solicitation. So far the testimony of the parties and witnesses agree, but from this point on the evidence on both sides is more or less unreliable, because of its very apparent inconsistencies and exaggerations. Out of it all, however, I believe that a line of truth may be found which in my opinion justifies the complainant in filing and seeking the limited divorce allowed by the law for cruelty.
It must be remembered that the complainant is a mere child. Her appearance on the witness stand was sufficient demonstration of her unfitness for the duties of the life she undertook, and, while her physical condition and her youth cannot he issues in the case, they certainly called upon the defendant for the greatest consideration and the kindest treatment. The defendant was frequently drunk, and when so he was abusive, and, although he denies that he was frequently in that condition, and his witnesses say that they never saw him intoxicated, he does admit that on two occasions since the marriage he was drunk, as he himself puts it, for two weeks at a time. The wife says that, when he was intoxicated, he was abusive. No better evidence of this propensity can he adduced than the story told by the wife and her mother of the occasion when he attacked the mother, and in his child wife's presence bit the mother's finger severely. One of defendant's witnesses who it was claimed was present attempted to deny this fact, but she did it so evasively as to merely confirm me in the belief of it. The final act occurred in the latter part of March or early April of the present year. The occasion was the wife's birthday anniversary. The husband by his own admission purchased a bottle of whisky and a bottle of wine and proceeded to get drunk. He was in this condition for two weeks, as he says. During this period his wife felt obliged to sleep on the floor. One night before she finally left him he got up, and, as she says, trampled on her while she so lay on the floor. Her testimony is confirmed by that of Dr. Crane, her mother, and Mrs. Jones, all of whom saw the bruises that were caused by this treatment a day or so thereafter. I have not thought it necessary to recite the whole of the evidence of cruelty. There were times apparently when the wife was treated well enough, perhaps; but I do not think that this weak, nervous, anæmic child (see evidence of Dr. Crane) should be compelled to undergo, at the peril of her life, the kind of treatment that she has already received and would be likely to receive in the future if she continued to live with her husband.
Boyle's own testimony shows how little affection he had for his wife and how little he regarded her. He at one time or another accused her of stealing his money, called her a thief, a bitch, and a whore. He says in his direct testimony that he has always been ready to take care of her if she would come back to him, while in his cross-examination within 10 minutes thereafter he says that he does not want her for a wife, claimed that he was drunk when he married her, and that when he woke up from his stupor and found that he was a married man he was displeased, that this displeasure had remained in his mind ever since, and that he did not want her as a wife.
On the argument it was urged on behalf of the husband that only two occasions of cruelty of any sort were clearly testified to by the witness. An examination of the testimony does not sustain this statement because it appears from the testimony of the wife, with some corroboration, that his crueltyextended to different and other occasions. The appearance of the defendant on the stand did not impress me favorably, and I think that the evidence discloses a propensity on his part which lends strong corroboration to the story that the wife tells. Isolated and infrequent acts of cruelty by a husband to his wife, culminating, as they appear to have done in this case, in physical violence of a dangerous character, accompanied by abusive words and a disavowal of any affection for her, are certainly sufficient to justify a woman in leaving her husband; and the statement is especially true in this case because it applies to all these acts of cruelty, not to a strong healthy woman who might be able to withstand her husband, but to a weak, immature, and undeveloped child. The bill prays for the statutory divorce from bed and board, and also that the defendant may be decreed to provide suitable support and maintenance for the complainant for such time as the circumstances may render it suitable and proper.
I think that she is clearly entitled to the divorce from bed and board. There is, however, nothing before the court from which the defendant's faculties may be ascertained except the papers used on the motion for alimony pendente lite at the beginning of the case, and excepting also some very slight and incidental references to the defendant's ownership of real estate at the final hearing. Pending the suit the complainant was allowed $8 per week. I am not inclined to increase this amount for the present. In case any state of facts exist which will show that this is an excessive amount to award against the defendant, in view of his obligation to support his wife and his financial abilities, I will, before advising a decree, give the defendant's counsel an opportunity to present the facts. The defendant must pay costs and a counsel fee to be fixed by the chancellor.