Opinion
08-30-1904
WILKINS v. WILKINS.
I. F. Goldenhorn, for petitioner. Thomas M. Noonan, for defendant.
Suit by John B. Wilkins against Margaret Wilkins. Decree for defendant.
I. F. Goldenhorn, for petitioner.
Thomas M. Noonan, for defendant.
GARRISON, V. C. On the 8th day of July, 1903, John R. Wilkins filed his petition praying for an absolute divorce from his wife, Margaret. In his petition he alleged that she had been guilty of adultery with John Powers. She filed her answer on the 22d day of August, 1903, in which she denied the charges of the petition.
On the 5th day of November, 1903, she applied for leave to supplement her answer by way of cross-petition; and an order bearing the above date was made, granting the application, which was consented to by the petitioner.
In the cross-petition she charges the petitioner with commission of adultery with Kate McManus, and prays for an absolute divorce.
His answer to the cross-petition, filed November 23, 1903, denies the charges of the cross-petition.
At the hearing the petitioner failed to produce any proof of the truth of the allegations of the petition, and I will advise that the petition be dismissed, with costs.
The hearing upon the cross-petition and the answer thereto was proceeded with.
The petitioner objected to proceeding with the hearing of the cross-petition and answer upon the ground that the court was without power to grant the relief prayed for by the cross-petition, contending that there was no warrant for such practice.
The practice of filing cross-petitions in suits for divorce is well established in this court, and has received its sanction. Gregory v. Gregory, 58 Atl. 287 (Magie, Ch.).
The parties to this suit were married on the 18th day of February, 1901. They went to live at the house of the wife's parents, at Bayonne, N. J., the wife at that time being 19 and the husband 20 years of age. He was the captain of a dredge operating in and about the waters adjacent to New York.
Although the husband manifested a lack of proper marital feeling towards the wife from the beginning, they continued to reside together until April, 1902, the husband occasionally leaving the wife prior to that time, but returning to her.
At the date last mentioned he left his wife, and went to live at Hoboken, in the flat or apartment of a woman named Kate McManus.
I find that while residing in the house at Hoboken, N. J., with Kate McManus, in the spring or summer of 1902, the petitioner committed adultery with her.
He resumed marital relations with his wife in July, 1902, and actually went back to reside with her at her parents' home at Bayonne in September of that year, and continued to reside with her until the 4th day of February, 1903.
At the time of the resumption of marital relations in July, 1902, be was suffering from gonorrhea, which disease he at that time communicated to his wife.
She consulted a physician, and learned from him the nature of the disease. She knew that it bad been communicated to her by her husband, and she accused him of it.
According to her version of this incident, he replied that he had acquired the disease as a result of a sprain, and she testifies that she believed this explanation.
He does not deny that he was suffering from the disease, and suggests, rather than testifies, that it came from his wife to him.
There is no contention on the part of the cross-petitioner that the proofs show any act of adultery committed by the husband after his return in July, 1902.
The petitioner, at the hearing, sought to defeat the cross-petitioner by showing that she had condoned his offense.
"To enable a defendant to avail himself of condonation as a defense to a suit for divorce, he must set it up either by plea or answer." Warner v. Warner, 31 N. J. Eq. 225 (Van Fleet, V. C).
In the present case the answer to the cross-petition is entirely silent on this subject.
Since the cross-petitioner did not object to the testimony adduced by the petitioner in support of his defense of condonation, no harm will be done by permitting the petitioner to file a supplemental answer to the cross-petition setting up this defense.
This is the practice as sanctioned by the courts. Warner v. Warner, supra; Seeburger v. Seeburger (Err. & App.) 57 N. J. Eq. 631, 42 Atl. 728.
The husband testifies that in the months of May and June, 1904 (just before the hearing of this suit), he met his wife several times at night, by appointment, upon the streets of Bayonne, and that they went into a clump of wood bordering a street of Bayonne, and there had sexual intercourse. The wife denies this, and produced several witnesses whose testimony, if true, entirely disproves the testimony of the husband on this point.
I do not believe his testimony, and do not find any ground for the defense of condonation in any conduct of the wife after February 4, 1903.
This leaves for determination the question whether her conduct in resuming marital relations with her husband in July, 1902, and continuing them to February, 1903, under the circumstances of this case, amounts to condonation.
The husband was suffering from gonorrhea at the time he returned to her in July, 1902.
Since she acquired the disease from him at that time, she had knowledge of that fact.
If knowledge of that fact was sufficient to apprise her that he had been unfaithful to her, then she must be held to have condoned his offense by the resumption of marital relations with him.
Chancellor Green, in Mount v. Mount, 15 N. J. Eq. 102, 82 Am. Dec. 276, speaking with reference to the effect of proof that the husband was affected with a venereal disease, said: "* * * The existence of the disease in the husband is consistent with the adultery of the husband, with its having been communicated by the wife, and with accidental communication of it."
The explanation made by the husband to the wife in the case at bar left him blameless, and attributed the contraction of the disease to causes other than sexual intercourse.
Apart from the impropriety of permitting a husband to set up a defense based upon the proposition that the wife should not have believed his statements to her, but should have known their falsity, the defense cannot be sustained.
Condonation is based upon knowledge by the offended party of the offense, and of facts reasonably within the power of such party to prove.
In the case at bar the wife is not shown to have had any knowledge or information concerning her husband's conduct, except knowledge of the fact that he was suffering with gonorrhea.
She was entitled to believe his statement of the cause of that disease.
It does not lie in his mouth now to say that she should have disbelieved him.
She testifies that she did believe him, and that it was not until long afterwards, and, as the testimony shows, after she had filed her answer in this suit, that two former friends of the husband (Bloodgood and Kaiser) visited her, and informed her of her husband's conduct with Kate McManus.
It was not until this communication was made to her that she had knowledge of facts, or of any way to obtain evidence of facts, which proved the commission by her husband of adultery.
The law is slower to infer condonation from the acts of an offended wife than from those of an offended husband. The reason for this attitude and of the reluctance of the courts to absolve the husband from the consequences of the wrong he has done his wife, if it be not clearly proven that she knew of and condoned the offense, is clearly stated by Vice Chancellor Van Fleet in Shackleton v. Shackleton, 48 N. J. Eq. 367, 21 Atl. 935, 27 Am. St. Rep. 478.
I conclude, therefore, that the petitioner failed to make out the defense of condonation, and that the cross-petitioner is entitled to a decree of divorce because of the adultery of the petitioner, and I will so advise.