Opinion
05-31-1905
TOTTEN v. TOTTEN.
Suit by Mary Totten against Abram Willard Totten. Decree for petitioner. Allan H. Strong, for petitioner. Alvah A. Clark, for defendant.
Suit by Mary Totten against Abram Willard Totten. Decree for petitioner.
Allan H. Strong, for petitioner. Alvah A. Clark, for defendant.
BERGEN, V. C. The petitioner charges that her husband, the defendant, committed adultery with Sara De Hart on different days during the spring and summer of 1903, and on different days during the months of June and July in 1904, and thereupon prays for a divorce and alimony. The defendant, by his answer, admits that he was unfaithful to his marriage vows during the year 1903, and for that reason the petitioner declined to cohabit with him during the months of October and November of that year, but charges that she in the month of December, 1903, with full knowledge of all the facts, condoned the offense, and denies that since the condonation he committed adultery with Sara De Hart, as charged in the petition. The petitioner admits that, with full knowledge of her husband's unfaithfulness to her during the year 1903, she condoned the offense, upon the promise of her husband that he would do better, and that it should never occur again, which promise, she now alleges, he did not keep.
Prior to the latter part of August, 1903, the defendant's paramour resided with her parents, about two miles from defendant's home, at which time she left and went to Richmond, Va., where she obtained employment as a church organist. The parties lived in Franklin township, Somerset county, a few miles from New Brunswick; and, when Sara De Hart started for Richmond, the defendant went with her as far as Philadelphia. Within 24 hours after they parted she wrote a letter to the defendant, which in plainest terms disclosed their illicit intercourse, and is important evidence on the subject of the extent and character of their relations, and of great weight in determining the credence to be given to defendant's testimony regarding his actions subsequent to the condonation. The evidence shows that after the reconciliation, in December, the defendant and Sara De Hart maintained a correspondence, and that her letters, instead of being mailed to him at his usual post-office address, were sent to a different post office; that some time in June, 1904, Sara De Hart returned to her parents' house on a visit, and remained there until early in the month of July. It is during this period that the petitioner claims the defendant so conducted himself as to forfeit the condonation, and it is admitted by both parties that, upon being satisfied of his wrongdoing, the petitioner, on the 10th day of July, 1904, refused to cohabit with her husband, and in August left his house. The evidence which she offers in support of her claim, in my judgment, justifies the conclusion that the defendant did not observe the promise upon which the condonation was based. She testifies that one night while Sara De Hart was at home, in June, 1904, he left his home in the evening, telling his wife that he was going to a neighbor's, by the name of Voorhees; that, as he did not return, she went over to the neighbor's house, found the house closed, and that apparently the family had retired for the night; that she returned home, seated herself in a wagon near the barn, and about midnight saw her husband coming across the country from the direction of Sara De Hart's house, walking through the grass, which was so wet that his shoes and part of his clothing were completely saturated with water. This occurrence the defendant explains by saying that he went to Mr. Voorhees, and met a Mr. John Garretson. who was there with a wagon, and asked him to go home with him, as he had something to show him; that he went with Mr. Garretson, whose home was about four miles away; that all he had to show him was some correspondence, after which he walked home across the country. Mr. Garretson was not called as a witness, nor his absence explained; and I discard this explanation as totally unworthy of belief, and am satisfied that the defendant on that night had visited his former paramour. It further appears that when the woman returned to Richmond, the defendant again went with her as far as Philadelphia. The defendant positively denies that he and Sara De Hart resumed their illicit intercourse during this visit, but it is impossible to give any credit to his story.An examination and analysis of his evidence demonstrates that he is untruthful. He testified that his carnal intercourse with this woman in 1903 was limited to a single occasion, which occurred about three months before she first left home; but the letter which she wrote to him, and which he exhibited, indicates most strongly the falsity of that statement, for it shows that when they separated both had grave apprehensions that she might be recently pregnant, and contained a statement which relieved his mind on that subject. His explanation of the meaning of that statement is so shallow and weak as to preclude the possibility of a belief that the witness himself could seriously ascribe to the letter any such meaning as he offered, and this attempt to knowingly mislead the court puts all of his evidence beyond the pale of belief.
The facts, briefly stated, show a licentious intercourse between the defendant and Sara De Hart, covering several months; a discovery and admission of his wrongdoing; a reconciliation and forgiveness by the wife, based upon his promise to treat her with conjugal kindness; a subsequent and secret correspondence between the wrongdoers; and, after the return of the woman to defendant's neighborhood, a resumption of their relations—for it is impossible to believe that, after the relations which had existed between these parties in 1903, they would not be resumed if opportunity offered. That the opportunity presented itself and was availed of, I have no doubt, for, if this defendant honestly intended to keep his promise to his wife, he would have avoided all appearance of evil. His visit to his former mistress that night in June, and his trip with her to Philadelphia on her return South, can, under the circumstances disclosed in this case, have but one meaning. I have not adverted to the testimony showing the confessions of this defendant, made by him to the witness Van Doren, because I consider the evidence sufficient without it; but "Van Doren testifies that the defendant told him that on the second visit to Philadelphia he and Sara De Hart committed adultery at the Bingham House. The defendant denies this, but the denial has no weight with me, and I believe that the defendant made the statement to the witness Van Doren; and the admission is sufficiently corroborated by the circumstance that the defendant did go to Philadelphia on that day with this woman. That he, a married man, should go as far as Philadelphia with this woman on her return trip to Richmond, after his confessed wrongdoing, and promise to his wife to do better, evinces too strong a solicitude for the companionship of this woman to lead elsewhere than to the belief that his love and affection for her overcame his good resolutions, if any he had, and that his whole conduct justifies a forfeiture of the forgiveness extended to him by his wife.
Condonation is based on repentance, and is no defense where the subsequent conduct of the forgiven one negatives the idea of repentance; nor is it necessary, in order to overcome a condonation, to produce "clear proof of an actual fact of subsequent adultery." Bish. on M. D. 373. Condonation is not absolute remission. Its effectiveness depends upon reformation of conduct, and may be destroyed by evidence tending "to show the revival of the old intent, or to rebut the presumption of a change of intent, growing out of the condonation." Bish. on M. D. 378. Where parties between whom an adulterous intercourse has been once established are found living together under circumstances which would induce every unprejudiced mind to conclude their inclinations had not changed, the fair presumption is that the illicit intercourse is still continued. Smith v. Smith, 4 Paige (N. Y.) 432-437, 27 Am. Dec. 75. The adulterous intercourse having been established in this cause, my conclusion is that this defendant has by his subsequent conduct demonstrated that his repentance was not genuine, and his association with his paramour in June and July, 1904, was of such a character as to overthrow the condonation and entitle the petitioner to the relief she seeks.
As the question of alimony was not discussed, I will hear counsel on that question before settling that portion of the decree.