Opinion
01-19-1928
KLEIN v. KLEIN.
Merritt Lane, of Newark, for petitioner. Francis A. Gordon, of Elizabeth, for defendant.
Petition for divorce by Adeline Klein against David Klein. Decree advised for plaintiff.
Merritt Lane, of Newark, for petitioner.
Francis A. Gordon, of Elizabeth, for defendant.
BACKES, Vice Chancellor. This action is for a divorce a vinculo on the ground of extreme cruelty. The Blackwell Act (P. L. 1923, p. 494) made no change in the cause for action. Extreme cruelty always was a cause for divorce. That act simply gives a different relief. Extreme cruelty was and is a ground for divorce from bed and board; now, under the Blackwell Act, it is a ground for absolute divorce.
It is abundantly established, beyond peradventure, that during the 13 months this couple lived together he (the defendant) was frequently drunk, and upon many occasions used violence towards his wife, cursing her, and finally it resulted in the woman leaving. She fled because of his conduct. She had reasonable ground for apprehending that, if she continued with him, it would simply be a repetition of what she had already endured. I need not rely in this case on the testimony of the wife; friends and visitors at the home give testimony of his brutal conduct towards her. The defense is a denial of all that his wife has said as to physical violence, and denial of all that his former friends, and probable friends of today, have testified to. By the sheer weight of the evidence the cause for action has been established.
Her conduct after the separation, it is urged, indicates that the woman was not in fear; that it indicates absence of fear of her husband. What she did afterwards may reflect the conduct of the parties and her state of mind during cohabitation; but it is not a bar to her right to relief, if the right of action existed and she did not forfeit it by condoning the offense. They did meet upon occasions, and apparently on friendly terms; but that does not at all militate against the established fact that she was shamefully treated, and fled, and stayed through apprehension of future abuse on the part of the husband. The wife had stood for far more than she was called upon to; but still, feeling that there might be some salvation of the man she had married, gave him opportunity, even the day after the separation. Notwithstanding what she had been compelled to submit to, she offered to go back, or was ready to go back, and resume relations, if he would apologize, meaning thereby, if he would reform his ways, or promise to, and he refused. That does not indicate that, when the woman fled from the house, and even at that time, when she made the approach, she was not apprehensive of a renewal of his misbehavior; but she was willing to take his word and chance that there would not be.
Now the cause of action under the Blackwell Act became fixed the moment the assaults were committed; by that I mean the moment the conduct of the husband amounted to extreme cruelty. It became as fixed as does willful and obstinate desertion at the expiration of two years, or as does adultery. The cause of action for extreme cruelty vests an absolute right to a divorce, which the injured party may exercise after six months—not before. That time must elapse, as was held in the Coe Case (Coe v. Coe, 97 N. J. Eq. 67, 127 A. 39; affirmed 99 N. J. Eq. 422, 131 A. 922; see, also, Hart v. Hart, 99 N. J. Eq. 373, 131 A. 903), to permit the offended party to cool down and reflect before taking the step. In the Coe Case the husband offered all sorts of reformation, the wife met him, and it was held, as I hold here, that it was the wife's option to forgive and return, or at the expiration of six months to sue, notwithstanding conduct which might tend to bring the husband to a full realization of his wrongdoings, and even though during that period of time she evinced hope that there might be a reunion.
It has not been argued, as it sometimes is, that the wife, after submitting to numerous acts of cruelty, continued to live with her husband, and that that is evidence of forgiveness. A wife, continuing after brutal conduct on the part of the husband, does so in most cases, not in a spirit of forgiveness, but in the hope that he may mend his ways, or that she is constrained to do so because of children or her own necessities. Here. after the 13 months' wretched experience with a drunken brutal husband, the thing that probably broke the camel's back was that he spat in her face, which he does not deny; it was then that she concluded to separate. I have no confidence in the denials of the defendant. I cannot place any reliance whatever in his testimony, and of the many things that lead me to think he is untruthful this stands out. He says his wife was in the family way about a month before they separated. Two days after the separation she submitted to curetting, as she says—an abortion. The process is the same. Curetting follows abortion, as it may follow many other ailments of the womb; but that is neither here nor there.
Within 12 days after, this man says, his wife submitted to him in an automobile; that is, she had just rid herself of a foetus, underwent an abortion, and then, on the eve of the cure, after the abortion, again submitted herself to his embrace, taking the chance of a second conception. It may be that a woman will submit within 12 days after an abortion to sexual relations, but experience does not tend that way. I do not believe that part of his story, and the wife denies it. It seems, to me cooked up to meet a bad situation. As an affirmative defense, condonation, it is not sustained.
I will advise a decree.