Opinion
No. 48/519.
08-08-1922
TORRENS v. TORRENS.
Philip J. Schotland, of Newark, for petitioner. Clyde D. Souter, of Newark, for defendant.
Petition for a divorce by Annie E. Torrens against Robert Torrens. Petition dismissed.
Philip J. Schotland, of Newark, for petitioner.
Clyde D. Souter, of Newark, for defendant.
BACKES, V. C. I will state my conclusions now. The charge is adultery, and the prayer is for a divorce a vincula. There is no direct evidence of the commission of the crime. The charge is sought to be established circumstantially, and that may be if opportunity and desire to commit the offense be proved; then the law presumes that the crime has been committed. There is an abundance of proof of opportunity, but the case is absolutely barren of any of desire or inclination to commit the offense, and the excess of proof of the one element cannot supply the deficiency in the other. Both must be satisfactorily established, and to a degree, as was said in the Berckmans Case, 16 N. J. Eq. 122 "as would lead the guarded discretion of a reasonable and just man to that conclusion [that the crime had been committed]."
This is the state of affairs: Tbe parties are living together today, as they have for some time past, alone in an apartment, housekeeping, and against the protest of meddling relatives and in defiance of them. That is suspicious, I grant, if it were pot for the way it came about. After the defendant separated from his wife he went back home to his father and mother, who lived in the very same apartment; an aged aunt also made that her home. The corespondent was hired as housekeeper. The father, mother, and aunt passed away, and the housekeeper and defendant kept on. He says because he wanted a home—his own home—and he did not want to be a lodger in another's home. Then size up the two from what has been, told about them, and as they appeared and acted here. Does it look like a sinful intimacy? The defendant is cadaverous and decrepit, prematurely old, and grouchy. He looks far beyond the years he owns up to. The corespondent is fair, fat, and 50. The first she admits, the second she cannot deny, and the third she does. They are clean of mind, as indicated by their speech on the stand. They are religious, and altogether they do not look nor act the part implied by the charge. They are certainly defying convention, and are undoubtedly inviting scandal, but I cannot, from their mere living together in the same apartment, without any proof of illicit desire on the part of either, infer that their relations are criminal. There is nothing in their conduct that leads me to believe that their relations are meretricious. To use Justice Garrison's language in the Osborne Case, 44 N. J. Eq. 257, 14 Atl. 217, where the petition was dismissed:
"Adultery is not shown, nor are the elements of lust, lewdness, depravity, or secrecy, the invariable concomitants of criminal conversation, to be found in the proofs."
The petition will be dismissed.