Opinion
01-25-1899
PERKINS v. PERKINS.
C. E. Hendrickson, for complainant. Gilbert & Atkinson, for defendant.
Bill by Addie L. Perkins against Luther W. Perkins for support and maintenance. Heard on complainant's application for alimony pendente lite. Granted.
C. E. Hendrickson, for complainant.
Gilbert & Atkinson, for defendant.
GREY, V. C. The bill in this case is filed by the wife for maintenance, because of alleged abandonment and nonsupport by the husband. An answer denying the charges of the bill has been filed. The answer contains intimations of adultery on the part of the wife, but no specific charge alleging that fact, with time, place, and circumstance. The complainant prays, by petition, for alimony pendente lite, with an allowance for counsel fee. An order to show cause has been allowed, and with its return are depositions and cross-examinations taken on both sides. The marriage, the abandonment by the husband, the nonsupport of his wife, and his ability to support her; that there have been four children born of the marriage; that all of them are dead, save one son, about 18 years of age; that the wife has no other property than a deposit of $500, which produces her $15 a year,—are facts shown in the petition and proofs, and substantially without dispute. There is also proof, of which there is no denial, that for some three or four years last past the husband has been guilty of adultery, the last date mentioned being during the peace jubilee in September last.
It will be noted that the proofs above stated, if there were no sufficient answer to them, would entitle the wife to an allowance for alimony pendente lite. The sole answer made is that the wife has herself been guilty of adultery. This allegation being set up indefense of an admitted or proven liability, the burden is upon the defendant to show the truth of the charge by the preponderance of his evidence. This charge is based wholly upon the testimony of the husband, setting forth the discovery by him of letters (which he declares were incriminatory) in the possession of his wife, but which it is shown he has since destroyed, and another letter (much more incriminatory) which he alleges the wife took out of the house, and a confession of repeated acts of adultery which the husband testifies she made to him, and which he reduced to writing, and gave to a commissioner of deeds, who redrafted it, slightly varying its form, but setting forth the date and actions in the same words as in the husband's memorandum. The commissioner testifies that he read to the wife, in the absence of her husband, the confession which he had redrafted, and that she signed it, and acknowledged that she signed it voluntarily. This paper is produced. The complainant denies the charge of adultery.
Evidence is produced which shows that the alleged incriminatory letters, which the husband burned, were written to another woman, and were held by the complainant as custodian only. Nothing in them appears to have imputed wrongdoing to the complainant, except a phrase in one letter, in which the writer stated that he "hoped Addie [meaning the complainant] and Prank [meaning the alleged paramour] had a good time." This sentence, the defendant insists, refers to an act of adultery on the part of the wife. If there was a letter containing these words, it was a statement by one stranger to this case to another, and would of itself be inadmissible as evidence. Its only significance would arise from the fact that, though writtec, not to the complainant, but to some one else, it was yet found in the complainant's possession. The words themselves are not conclusive as to the meaning ascribed to them, and there are no corroborating facts shown, except the other letter, about to be considered, and the confession. But the proof that there was any such phrase in the letter is solely that of the husband, and he has himself destroyed the letter. The wife denies that there were any such words in any of the letters, and declares that nothing in the letters referred to her in any way, save by a mention of some liquor which she had given the writer.
As to the other letter, it is testified by the husband that the wife, after appealing to him not to open a drawer, while his back was turned took something out of it, and ran away, he pursuing her; that she put this thing in her stocking, and, after insisting it was money, finally admitted to him that it was a letter, which she had torn up, and had thrown the pieces over in a lot. He says he got the pieces, and put them together; but he does not produce the assembled letter, and explains its absence by stating that it was taken out of his house by the complainant He restates the contents in letter form from memory, declaring that it was addressed, "Dear Addie," and signed, "Frank," the name of the alleged paramour. The statements in the letter need not be quoted; but they would, I think, show an indecent relation between the writer and the person addressed. When, or under what circumstances, the reconstructed letter was taken by the wife, is not stated. Nor is any one but the husband shown ever to have seen it. The complainant denies that there ever was such a letter, denies that what she had in her stocking was a letter, and explains that it was money, which she feared her husband would take from her.
The confession is also stated to have been made to the husband. He testifies that when he found the letters, addressed to her on the envelope, but inside for another woman, and after be knew their contents, he accused her of adultery, and that she denied it; that he then told her he would see this woman, and find out the truth; that his wife told him, if he would not go to the woman, and make a fuss about it, she would tell him the truth; and that she then told him of four different acts of adultery with the alleged paramour, naming the time and place of each, and, as to one of them, the hotel at which the parties stayed all night, and that they then registered as man and wife. He testifies that he reduced this to writing, and took it to a commissioner of deeds, and told him that the complainant wanted to see him, and wanted him to make out a paper, a copy of which he gave to the commissioner. The latter copied it, and, two or three days after, went to defendant's office. The latter was there. The commissioner said he was ready, if the complainant was. The defendant then went into the house, and called her into the office. She said she was ready to sign it, and wanted the defendant to stay while she signed it; but the commissioner said. "No," and told him to go out. He went out. The paper was read over to her. It details the four acts of adultery. There was no particular conversation about it, but the commissioner told her she did not have to sign it unless she wanted to. She signed and acknowledged it. The commissioner called the defendant in. The complainant wanted the commissioner to keep the paper. He declined to keep it, and laid it down on his desk. The defendant then picked it up, and the commissioner thinks the defendant also took the original memorandum which he had made. This confession has an acknowledgment appended, in which the commissioner certifies that he read the contents to the wife, and that she acknowledged that she signed it "as her voluntary act and deed." Some time after this the wife met the commissioner, and told him that she had been forced to sign this paper by the defendant'sthreats that he would kill her. The wife testifies that she was, at the time of making this supposed confession, "just out of bed from nervous prostration," and that it was forced from her by her husband, by threats and menaces of the most violent sort, and that he actually choked her, and made her go before the commissioner to sign it. She says her husband, when he had obtained her confession, said to her, "My good woman, I've got you now where I want you." It will be noted that the husband and wife, as to the alleged confession, are in direct antagonism upon the question of her freedom from his influence in making it. There is not a single circumstance, as to the actual fact of the adultery of the wife, shown to support the confession. The confession was admittedly made originally at the husband's instance, and to him alone. He wrote an original note of it, and submitted it to the commissioner, who appears to have merely copied it from the husband's memorandum. The husband brought the wife to the signing of the confession, and absented himself only during the period of her actual execution of it, and immediately appeared, and possessed himself of it. The certificate of acknowledgment does not contain the words, which the commissioner must have many times used, and which ordinarily appear in every acknowledgment of a wife, namely, that it was signed "without any fear, threats, or compulsion on the part of her husband." The commissioner's testimony is not expository of any admission by the wife, save by the execution of the formal paper.
As before stated, the case made by the complainant would entitle her to alimony pendente lite unless the defense of adultery on her part, set up by the husband, is sustained. I am unwilling, in this preliminary inquiry, to pass upon this husband's defense in detail, or to discuss the merits of the main issue in the case; nor is it now necessary. None of the proofs were taken in open court, so that I have had no opportunity to judge of the manner and appearance of the witnesses, who stand in direct contradiction of each other. Taking the case as it now stands, I think the husband has failed to show the wife's guilt so conclusively that he should be freed from the ordinary obligation to afford his wife support and the means of making her defense pending the cause. I will advise an order that he pay to his wife the sum of $7 each week pending this cause, and $25 for counsel fee, and the costs of the order to show cause, and of testimony taken thereon.