Opinion
10-13-1908
SPENCE v. SPENCE.
Marvin A. Spaulding and Barton B. Hutchinson, for petitioner. John Sykes and Linton Satterthwait, for defendant.
(Syllabus by the Court.)
Bill by Johanna Spence for divorce against Thomas H. Spence. Complaint dismissed.
Marvin A. Spaulding and Barton B. Hutchinson, for petitioner.
John Sykes and Linton Satterthwait, for defendant.
WALKER, V. C. This is essentially a fact case, and at the clase of the hearing I took occasion to remark that I was in a state of dubiety concerning the decision. I regarded, and regard the case as a very close one. Upon the hearing I also remarked that unfounded charges of adultery by the husband against the wife were the principal facts of the alleged extreme cruelty. In Black v. Black, 30 N. J. Eq. 215, Vice Chancellor Van Fleet, at page 221, used this language: "Slight violence by a husband, who has evinced a hatred almost diabolical, against his wife, in attempting to blast her reputation by fabricating a charge of adultery against her, has been deemed sufficient." So, it appears there must be some form of violence, coupled with a false charge of adultery, to entitle a wife to a decree, and it seems it need not be the actual infliction of physical injury, but may be threatened only, provided there be reasonable ground to apprehend that it will be inflicted. Close v. Close, 25 N. J. Eq. 526; Smith v. Smith, 40 N. J. Eq. 566, 594, 5 Atl. 109. The defendant in this case seduced his wife before marriage, and, whether from that fact or not, he seems to have taken more or less delight, during the 10 years they lived together, in denying the parentage, not only of his first, but his second child. He frequently informed his wife, and several times in the presence of others, that he was not the father of her children. This, of course, amounts to a charge of adultery as to the last child, and fornication with some one other than himself as to the first child. There were also some acts of violence testified to, but they were few and far between, and not severe. He was also guilty of some acts of cruelty not violent in character. The rule is that a divorce from bed and board for extreme cruelty is not granted by way of punishment for past offenses, but as a preventive measure, to protect the health or life of the wife from threatened danger in the future. Weigel v. Weigel, 60 N. J. Eq. 322, 47 Atl. 183. Now the effect of Mrs. Spence's testimony is that her greatest apprehension, if not her only fear of her husband—that is, fear of bodily harm from him—is the fact that he had a revolver in the house. He did tell her that he would show her what he would do with it, but she admits that he never pointed it at her, or threatened her directly with it in any way.
Spence upon the witness stand expressed a desire to have his wife return to him, and promised to treat her well in the future. His conduct toward her in the past, to say the least of it, was that of a dastard, and it may be regrettable that the evidence, under the authorities, does not entitle her to a decree. His conduct was certainly intolerable at times, but did not, in my judgment, according to the adjudications, amount to what in the law of this state is denominated extreme cruelty. In this cause, as I view it, the petitioner just falls short of making a case under the law. It is certainly not to be regretted that, in dismissing the wife's petition in this case, I may do it without prejudice to her so that, if she should accept his proffer and renew marital relations with him, then, in the event of any other outbreak on his part, justifying another appeal by her to this court, the offenses which were made the subject of her present complaint will be available to her in addition to any fresh outrage he may commit. This course was adopted in English v. English, 27 N. J. Eq. 579, in which the Court of Errors and Appeals said, at page 586: "The bill will be dismissed without prejudice, so that the facts urged in this complaint may be used if the case should again be brought before the court." Such will be the decree in the case at bar.
I have no hesitation in pronouncing the rule to be this: If the facts constituting the alleged cruelty are disproved, a decree dismissing the petition of complaint will operate res judicata, and be a bar to pleading or proving the same facts in any subsequent suit; but that, if the facts be true, but Insufficient to entitle the petitioner to relief, then a decree of dismissal may be entered without prejudice to the petitioner's right to plead and prove the same facts, in addition to any other or others, which may afford the ground of a subsequent suit against the defendant. Too often, I fear, men like Spence interpret a decree dismissing absolutely a wife's complaint in causes like this as a judicial indorsement, and they consequently feel that they can continue their cruei course of conduct toward their wives with impunity. Whenever it is possible, in a case of this kind, they should be informed otherwise, and given to know that, if their wives return to them, a repetition of the past, coupled with the past, is likely tolead to a judicial separation, with an award of the custody of children and alimony against them, of a permanent character.