Opinion
06-18-1896
JAMES v. JAMES.
Chas. B. Hughes, for complainant. William D. Daly, for defendant.
Bill by Marcella C. James against John H. James for divorce a mensa et thoro. Decree for complainant advised.
Chas. B. Hughes, for complainant.
William D. Daly, for defendant.
EMERY, V. C. This is a bill for divorce from bed and board on account of extreme cruelty. The parties were married in 1884, and the cruelty alleged is (1) actual physical violence and assaults, of which five instances are specified in the period between 1887 and the filing of the hill, June 19, 1895; (2) violent and abusive language and treatment from 1887 on, including false charges of infidelity and refusal to provide proper medical attendance to the wife when ill. Continuous habits of drunkenness are also charged by the wife. The defendant denies generally and specifically all the assaults, violence, and all treatment charged, and makes the counter charge of drunken habits against his wife.
As a result of a consideration of the evidence in the case, I reach the conclusion that the complainant has satisfactorily proved that on at least three occasions the husband was guilty of actual physical violence. The first of these instances was in the summer of 1887, when the defendant, coming home at night between 2 and 3 o'clock, was let into the house—an apartment or flat— by a Mr. Albert, who occupied one of the upper floors, and who went down to answer defendant's repeated ringing at the bell. Shortly after defendant entered his apartment, loud talking was heard, and the wife was heard to scream, and she soon after came out into the hall. Mrs. Albert then called to her to come up stairs, and she spent the night with them. Mrs. James' account is that, when her husband came into the room, he began to abuse her by calling her vile names, and then struck her while she was in bed, and held her down in the bed by the neck until she screamed out, when he let go, and she ran out in the hall. Mr. James' account of the incident is that he woke his wife up when he came in, that she had been drinking, and that, when he accused her of being drunk, she jumped from the bed, seized a globe from the mantelpiece, threw it at him, and went out into the hall, and screamed, and went up stairs. He denies that he struck his wife, or laid his hands on her. On the following morning Mrs. James says that, on coming into their apartment, he ordered her out of the house with I curses, said he would sell the furniture, and there would be no more home for her, and that she hid in the basement until he left, taking the boy with him. James denies using this language, but says that he took the boy to his mother's on the following day. Mrs. James went to a sister's, Mrs. Suffa's, with whom she stayed for some weeks. On the day after the alleged assault Mrs. James had her husband arrested for assault, and Mrs. Sulfa, the complainant's sister, with whom she went to stay, swears that the defendant came to her and pleaded with her to become his bail on this charge, promising to behave better in the future, and that, on this promise, she became his bail, and he was released, and his wife returned to live with him after three or four weeks. The complainant's charge of assault in this instance, corroborated by the above circum-stances, established by the evidence of other witnesses, is sufficiently made out. The next assault, sworn to by complainant, took place in the summer of the same year, 1887; and, as she says, in the presence of her sister-in-law, a Mrs. Catherine James. Defendant ordered Mrs. Catherine James out of the house, and, as complainant says, was about to strike the baby, in Mrs. Catherine James' arms, when complainant called out to him not to hurt the baby. Defendant then took her by the throat, and put her out, too. This account is corroborated by Mrs. Catherine James. The defendant admits ordering his sister-in-law out of the house, and gives his reason for doing so, that she would come and get drunk with his wife, but denies striking his wife or putting her out of the house. Corroborated as it is, I consider the complainant's allegations as to this assault to be proved. The third actual assault on the complainant occurred, as she swears, in January, 1894, when the defendant, coming home late at night, under the influence of liquor, accused her of stealing money from him, and assaulted her. Complainant's statement is corroborated by her brother, who was then boarding with them, and was awakened by his sister's cries for help, but is denied by defendant and by defendant's mother, who was also at the house at the time. The latter witness says the husband and wife had a violent quarrel, but that the wife was intoxicated, and began the difficulty, and that the husband, after getting, angry, took bold of her but did not strike her. The conflicting evidence in relation to this assault leaves it fairly in doubt whether the complainant did not by her own conduct to some extent provoke defendant's cruelty, and, standing alone, would not entitle complainant to a decree. The next assault alleged by complainant occurred a few days after Christmas, 1894, and shortly after complainant had returned home to live with herhusband, after an absence of some weeks, which she had spent with a sister, Mrs. DeHany, who housed her during an illness, when, as complainant says, defendant refused to provide proper medical attendance. On this occasion complainant says defendant struck her while she was preparing a meal, and because it did not suit him. He knocked her down, as complainant says, in the presence of their child, and, when the child screamed, he kicked him also. The child, an intelligent boy about 10 years of age, gives the same account, says that his father cursed his mother, hit her, and knocked her against the stove, and that, when he himself cried, the father kicked him for crying. The boy is now living with his mother, and is under her influence, but his evidence impressed me as truthful, and I cannot believe that both the mother and child are committing deliberate perjury by inventing the whole occurrence. The defendant admits that he found fault with the meal served, but says that his wife spoiled it because she was in liquor while cooking it, and he denies striking either her or the boy. His denials are not sufficient to overcome the evidence of the mother and child. The last assault complained of before the commencement of the suit occurred in May, 1895, when, as complainant says, her husband struck her with a broom, and the evidence of this rests entirely in the complainant's statement, and the husband denies it.
The general result of the whole evidence is to satisfy me that the denials of the defendant, which reach to every one of the transactions, are not sufficient to overcome the evidence adduced by complainant as to the assault; the circumstances of each different assault sworn to by complainant being to some extent corroborated by distinct witnesses. The evidence also establishes, in my judgment, that, in addition to these acts of actual violence, the husband's treatment of the wife has, since 1887, often been violent, abusive, and negligent; but I am not satisfied that the wife has not, by her conduct at times, provoked some of the abuse. The family life of complainant and defendant, as depicted by the evidence of their respective relatives, leaves no doubt as to frequent quarrels between them, with the accompaniments of drunkenness and abusive language, and leaves the only question for settlement whether the abuse and drunkenness was on the part of the husband or of the wife. There is exaggeration, no doubt, upon both sides, but, in view of the assaults which have actually taken place, and in view of the disposition of the defendant toward his wife, as manifested by the evidence in the case, including his own, I think a case has arisen in which the complainant cannot with safety resume or be required to continue the marital relations. The case seems to come within the application of the rule, laid down in numerous cases, that separation will be decreed where there has been actual violence by the husband to the wife, and there is a probability, based on these acts and on the character and disposition of the parties, that future acts of cruelty would occur or may reasonably be apprehended if the wife were required to return to the husband. Close v. Close, 25 N. J. Eq. 526, 529; English v. English, 27 N. J. Eq. 579, 585; Coles v. Coles, 32 N. J. Eq. 547, 557. I will therefore advise a decree for divorce a mensa et thoro, and that the custody of the child be given to the mother. There should also be a decree for alimony for the support of the petitioner, and an allowance to the mother for the maintenance of the child. These sums should be separately fixed in the decree, under the practice indicated in Richmond v. Richmond, 2 N. J. Eq. 90, Snover v. Snover, 13 N. J. Eq. 261, and 2 Bish. Mar. & Div. §§ 552, 553. I will hear counsel on these questions, and also as to counsel fees, before signing decree.