Opinion
10-27-1909
KOHLENBERG v. KOHLENBERG.
Frederick A. Rex, for petitioner. Annie Irving Keeler and William P. Walsh, for defendant.
Suit by Christian F. Kohlenberg against Louisa F. Kohlenberg. Decree for petitioner.
Frederick A. Rex, for petitioner.
Annie Irving Keeler and William P. Walsh, for defendant.
LEAMING, V. C. (orally). I do not believe that any useful purpose can be served in this case by my spending more time and energy in trying to exhaust all possible channels of information. I have in this case been peculiarly active and earnest in an effort to see that every possible channel of information should be exhausted, in order that no possible mistake could be made. I have, I think, an instinctive dread of pronouncing a decree of divorce against a woman upon the ground of adultery, and in cases in which that charge is involved I always feel it my duty to exercise every possible care to see that any light that can be had that will in any way relieve the defendant from the charge, or in any way assist in ascertaining the exact truth, shall be procured. For that reason I have, in this case, used considerable time and exhausted an unusual amount of patience in the effort to find something to corroborate the theory of the defense. At the hearing some weeks ago the suggestion was made upon the part of the mother ofthe defendant that if a young man whom she had in mind was present he would testify that he saw Kohlenberg, the petitioner, in Camden in June, 1908. She was prepared to testify to what the young man had said; but, of course, that testimony could not be received, and so I adjourned the hearing until a subsequent date, in order that that witness could be produced, and subsequently notified counsel on both sides that I would like, at that adjourned date, to further examine the defendant—some matters having come into my mind that I wanted to inquire about. On the date to which I adjourned the hearing, the defendant's counsel was sick, and wrote to the court that she could not be present. The petitioner, with his counsel, was present, and counsel stated that he had ascertained that the young man in question had not been sought by the defendant's counsel, and therefore he had taken it upon himself to bring the young man here, or to see that he came here. I declined, however, to examine him in the absence of counsel for the defendant, and postponed the further hearing of the case until to-day, and notified counsel for the defendant that 1 desired to conclude the case at this time, and that, if she could not be present, she should be represented here and have such witnesses here as she desired, and especially that I wanted to examine the defendant. Today counsel appears in behalf of the defendant The young man in question is produced by the counsel for petitioner, and has been examined, and is not able to testify to the matters that it was suggested he would testify to if present The defendant is not here; her mother stating that, if she came, she came at the risk of losing her job. I would be sorry to have her lose her job; but I do think that her reputation ought to be more Valuable to her than her present employment, however important that may be. The questions I desired to submit to the defendant are perhaps not so very important, so there is no good reason why I should further continue the case in order to examine her.
I have given this case considerable thought, largely due, no doubt, to my instinctive reluctance to pronounce a decree of divorce against a wife for adultery; but I have been unable to escape the conclusion that it is my duty now to do so. In this case the circumstances are especially peculiar. The husband and wife have been separated, admittedly, for a period of time beginning in March, 1907, and continuing to the present date. The wife gave birth to a child on March 17, or 16, 1909, in a hospital in Camden. The only intercourse, either social or sexual, which is claimed by any one to have existed between the parties, is that of a claim upon the part of the wife that in June, 1908, her husband came to her mother's home, where she was then residing, was admitted, remained for a short time, during that time had sexual intercourse with her, and went away, and she has not seen him since, except on the occasion of January 2, 1909, when, I understand, she claims to have seen him for only a few moments, and in company with others. The issue in the case, therefore, is whether or not in June, 1908, the petitioner came to Camden and had sexual intercourse with his wife. He says he was not in Camden at all during that summer. It is admitted that in June, 1908, he was living in Baltimore with his parents, and these parents have both testified, as far as would be possible, I think, for them to testify, that to the best of their knowledge he was not out of Baltimore during that period, or at any time until the day they left Baltimore in July following; and the husband it appears, continued his employment in Baltimore until September, 1908, and then returned to Camden and took employment here. Notwithstanding the efforts that have been made to find some evidence, other than the evidence of defendant, that petitioner was in Camden in June, 1908, or in the summer of 1908, no evidence of that character has beer produced. The young man whom it was' thought would so testify fails to do so. The witness produced this morning is uncertain when he saw petitioner in Camaen, but thinks it was in the fall of 1908. The petitioner was admittedly in Camden in the fail of 1908, so that latter testimony sheds no light upon the case. The impregnation of defendant occurred apparently in June, 1908. There seems to be no doubt of that fact. The physician who delivered the child has testified that it was a full-period child, and that the period of incubation varies so little that it seems scarcely worth considering. The maximum period he placed at 280 days, and the minimum period at 272 days. The child being born the 16th or 17th of March, 1909, the impregnation would necessarily nave been some time in June, 1908. The corroboration of petitioner's claim that he was not in Camden in June, 1908, can be found to an ample extent, I think, in this case. While the testimony of his father and mother to the effect that they are satisfied he was in Baltimore during all of that time at their home, and could not have come to Camden, is not as satisfactory as some methods of proof would be, because they might be mistaken, yet their testimony is undoubtedly corroborative in its nature, and fully satisfies the requirements of the statute touching the subject of corroboration upon that point, and if petitioner was not in Camden in June, 1908, he cannot be the father of this child. But there are circumstances of the case which, to my mind, furnish more powerful corroboration than the testimony of the father and the mother of petitioner, when they testify to the effect that their son did not leave Baltimore during that period, and that corroboration is in the testimony of the defendant herself. Her testimony, to my mind, defies credence. Try as I may, I am unableto reconcile her conduct and her statements of her conduct with the ordinary, natural, and reasonable course of human action. She asks us to believe that her husband, with whom she was on terms of animosity, as is shown by her admissions and by her own letters, which have been offered in evidence, a husband for whom she had no love or respect, a husband for whom in her letters she was showing the utmost contempt and disgust, a husband whom she admittedly had been separated from for a long time, and with whom, by her own admissions, she never intended to live again, that husband, she says, came to the house of her parents, where she was living, a house where he would not have been admitted, if her parents had, perchance, been at home, and was admitted to the front room by her, in the absence of all other inmates of the house, and in the short period (which, as my recollection serves me, was specified as an hour, or a half hour, I cannot remember which) that he was there, without any caresses at all upon his part, she says, or without any terms of affection or endearment, and without anything pointing to a reconciliation between them, without anything indicating that there was any hope or expectation upon the part of either one of them that they should ever live together again, under all of those conditions she permitted her husband to have sexual intercourse with her in that room and during that short period of time, when the husband left and she did not see him afterward until, she claims, on January 2d, when the interview touching the shoes occurred. Now, I say, that testimony upon the part of the wife defies belief. I cannot conceive that any woman would give that privilege to a husband whom she did not expect to live with her again, and in that manner encounter the risk of impregnation, when, admittedly, the act was not an act stimulated by a passion which sometimes overpowers the Judgment, as such acts do when they are committed illicitly.
Another element is, to my mind, quite as important, and that is the contents of the letters which were written by the defendant to her husband. The first letter which is produced is under date, as stamped on the envelope, of July 23, 1908. The letter within is not dated. That letter she wrote to her husband, addressing him at his home in Baltimore, or at his place of work in Baltimore, and when the letter was written in all human probability she was pregnant, and yet the letter makes no suggestion of that fact. The next letter was written July 27th. The letter is postmarked July 27th, and I find is dated within July 27th. That letter also is silent upon the subject of pregnancy, and, like the former letter, contains statements throughout which show that there is no expectation upon her part of ever living with her husband again. In fact, in that letter, and in the other letters to which I am about to refer, she states positively that she never will live with him again. The next letter is postmarked August 3, 1908, and dated within August 2, 1908; and in that letter no reference is made to the fact that she is pregnant. And the next letter, which is postmarked August 5, 1908, and is dated within August 5, 1908, though containing statements of her positive purpose never to reside with him again, is silent touching the subject of pregnancy. Now, I say that a wife so circumstanced, who had not lived with her husband for years, and who was pregnant from intercourse with her husband which occurred in the manner claimed, should not have written those letters without apprising him of the fact of her pregnancy. Why, look what she was encountering? She was, except in so far as she may have entertained a hope of getting rid of the child, in a condition where her crime would necessarily be exposed to her husband if he was not the father of the child. She was in a position where, living separate from her husband as she was, and where no one knew that she had ever seen him for a long period of time, the birth of the child would throw suspicion upon her in the public mind. There was every necessity in the world, if the circumstances occurred as she claims it occurred, for her to say to her husband: "While you were here in June, you made me pregnant. Now, we must get together until after the child is born, and we must do it at once." The very moment she found she was pregnant, every sense the woman had would have stimulated her, even at any sacrifice, to go to her husband and stay with him until after the child was born, instead of writing, as she did write, and continued to write, that they would never reside together again, and concealing the fact of pregnancy. So, I say, it is impossible in my mind for any unprejudiced intellect to arrive at the conclusion that it is possible for the intercourse that defendant narrates in June to have occurred in the manner that she narrates it. I cannot believe it. I shall, therefore, consistently with what I believe to be my duty, advise a decree of divorce for the petitioner.