Germain v. GermainGermain v. Germain
By a complaint filed November 19, 1951 plaintiff seeks a divorce from her husband, the defendant, because of his extreme cruelty extending for a period beginning in 1946 until April 1, 1951.
Defendant did not answer or enter an appearance and proofs were taken ex parte on June 12, June 26 and June 27, 1952.
The proofs satisfactorily establish that the parties hereto were married on January 11, 1941; that they have both resided continually in the State of New Jersey since that date, the рlaintiff presently residing at High Bridge, N.J. and the defendant at Clinton, N.J.; that two children were born of the marriage, viz. Dominick Eugene, now ten years of age, and Raymond Anthony, four years of age, both of whom are in the custody of the plaintiff; that at the plaintiff‘s insistence the defendant left their home at High Bridge, N.J. on April 1, 1951, since which time they have not resided together or cohabited; and that the defendant has been and now is supporting his children by voluntary pаyments of $200 per month to the plaintiff, their mother.
And it further appears by the proofs that the defendant is a practicing physician, formerly practicing at High Bridge and now at Clinton, N.J., and that plaintiff is a registered
At the hearing on June 12, 1952 plaintiff testified that trouble between her and her husband first arose in 1946 when she accused him of using cocaine, which he denied, and they quarreled about it; again in 1947 and 1948 they quarrelled frequently over financial matters; sometime during thаt period (date not stated) he called her names, including a son of a bitch and used the expression “God damn you“; that on one occasion he pushed her against the kitchen sink and that on another occasion he raised his arm as if to strike her, but she called his attention to the presence of their son and he refrained from striking her. She testified that he never actually beat her and offered her no threat of physicаl violence except as mentioned above. She said that he first started using cocaine, afterwards started using demerol tablets, then demerol by needle, and afterwards morphine; that the drugs caused him to be exhilarated and the demerol made him sleep; that when using drugs he became moody and would fly into a temper on slight provocation which resulted in arguments between them; and further, that he spanked their elder boy more оften than was necessary. Plaintiff further testified that the defendant would on occasion fall asleep while under the sedation of drugs and would drop burning cigarettes which resulted in holes being burned in the rugs, in the sheets, and in the mattress at their home. Also that after taking drugs he would at times become nauseated, would vomit, and she would have to clean up after him. Plaintiff testified that she was afraid of her husband; that she was under a constant strain and becаme very high-strung
Plaintiff testified that by reason of the foregoing she requested or demanded that the defendant leave the house and that he did depart on April 1, 1951, since which date he has not resided with her nor have they cohabited. Indeed, she testified that they had not cohabited for some months prior to his departure on the date mentioned. She also testified to having had pneumonia about a year before her husband‘s departure on April 1, 1951, at which time she was in the hospital but that she had not consulted a doctor from that time until April of 1951, after her husband‘s departure, when she called in Dr. Danzig.
Thomas E. Matthews, father of the plaintiff, testified that he had resided with the parties for approximately five years; that the defendant left the home on April 1, 1951 and has not since resided there; by his testimony he verified the plaintiff‘s statement as to residence; he testified to having heard arguments between the parties to this suit and having heard the defendant curse the plaintiff and call her a son of a bitch; and that the plaintiff became very nervous and upset and lost considerable weight, but that since her husband‘s departure on April 1, 1951 she has improved and looks and acts better at this time. This witness by his testimony also verified the fact that the defendant dropped lighted cigarettes which resulted in holes being burned in the rugs and sheets in the home. And also that on some trip with the defendant to a convention, when they took a
Dr. Henry Danzig testified that he had known the parties for three or four years and was soсially friendly with them; that during April of 1951 he examined and treated the plaintiff whom he found suffering from nervous exhaustion; that she had lost weight; she complained of insomnia, was extremely nervous, and generally was well under par.
At the second hearing in this matter on June 26, plaintiff was recalled and testified that the nursing home which she and her husband had established in 1947 was heavily encumbered by mortgages and loans, in a total amount exceeding $50,000; that she and the defеndant had violent arguments over money matters; that he gambled, incurred debts, and spent money extravagantly; that after he began using narcotics his fits of temper became more violent; that she was in fear of her life because of his use of narcotics and was also afraid for her children; that defendant was unnecessarily harsh toward the elder boy Eugene; that on one occasion in 1949 he grabbed the younger boy, Raymond, and bit him оn the buttocks; that the boy was badly frightened and that marks of the defendant‘s teeth were left on the boy and that the bite was sufficiently hard to cause the marks to become black and blue; that on another occasion in the latter part of 1949 or early 1950 he hit the younger boy, Raymond, on the top of the boy‘s head with defendant‘s open hand sufficiently hard to stun the boy and frighten him, although no real injury resulted.
Plaintiff further testified that her height is 5’ 2” and during her residеnce with the defendant her weight went down to 98 or 100 pounds, whereas the defendant‘s height is 5’ 10” and his weight ranges between 200 and 240 pounds.
Plaintiff further testified that she was afraid of the defendant and by reason thereof tried to avoid being alone with him and asked her parents, who slept across the hall on the same floor, to leave their door open and that she left her bedroom door open and that eventually (date not stated) she
The plaintiff testified that she was mentally and physically exhausted and worn out and that that condition was not entirely due to her work at the nursing home. She testified that many times she tried to persuade her husband to give up the use of narcotics; that he sometimes promised to do so, but never actually did, and that she also had mutual friends talk with him about the subject with no beneficial result.
At the second hearing plaintiff‘s father, Thomas E. Matthews, testified that the plaintiff had requested him to leave his bedroom door open at night because she was afraid of the defendant; that he saw the defendant strike the younger child on the top of his head with his open hand as mentioned above; and that he was also present when the defendant bit the child on the buttocks and left teeth marks on the child‘s body. Also that plaintiff had left her husband‘s bed and started sleeping with her son, Eugene, about a month before the defendant left the home on April 1, 1951.
Mrs. Helen L. Smith testified that she is a registered nurse; has been acquainted with the рarties to this suit since 1938; that she has been employed in the plaintiff‘s nursing home for the past three years as the person next in charge after the plaintiff; that she saw the parties to this suit nearly every day while she was so employed; that she has
Dr. Danzig was recalled at the hearing on June 27 and emphasized and enlarged somewhat the testimony he gave at the first hearing; he stated that when he wаs called in to attend the plaintiff in April 1951 she was in a debilitated state; showed evidence of nervous exhaustion and mental disintegration; that from the history she gave him he found she had been under terrific mental strain because of her marital difficulties; that she was in a weakened physical condition and had lost weight; and that, after her husband‘s departure on April 1, 1951 she improved. He further testified that she developed pneumonia due to her debilitated condition, that is, in April 1951, and that she was extremely
Does the foregoing state of facts, for substantially all of which there was adequate corroboration, make out a case of extreme cruelty under our statute entitling the plaintiff tо a divorce? I think the question must be answered in the negative.
The only act of physical violence directed against her and complained of by the plaintiff was the one occasion when the defendant pushed her against the kitchen sink, but there was no proof as to the violence of the push or that the plaintiff suffered any injurious consequences therefrom. The only threat of violence to the plaintiff shown by the prоofs was the one occasion when the defendant raised his hand as if to strike her but when she called his attention to the presence of their son, he desisted.
Punishment meted out by the defendant to his children, if excessive or unnecessarily frequent, as claimed by the plaintiff, does not make out a case of extreme cruelty under our statute entitling the plaintiff to a divorce. If the defendant abused his children, which has not been provеn to my satisfaction, the law provides a remedy for such misconduct, but the remedy is not to grant a divorce to his wife.
It is, of course, true that personal violence or physical abuse is not the only form of extreme cruelty which might entitle a wife to a divorce from her husband, although most of the reported cases involve elements of physical abuse.
On the other hand, as said by Judge Wells in Grewe v. Grewe, 138 N.J. Eq. 296, at 301 (E. & A. 1946):
“A wife cannot desert her husband because he drinks, swears, or makes her life uncomfortable. These are not crimes, but the infirmities and defects which in consideration of law a wife undertakes to put up with when she takes her husband `for better or worse.’ Incompatibility of temper has not yet been made a ground for divorce by thе law of this state. Julian v. Julian, 127 N.J. Eq. 77.”
The plaintiff testifies her life with the defendant was “horrible.” That is a statement of a conclusion and not a statement of fact.
She says that he became addicted to the use of drugs including cocaine, demerol and towards the end morphine; that the use of some of the drugs caused him to get into a state of exhilaration and the use of other drugs were sedative in effect and caused him to get in a stupor and gо to sleep; and that at times the use of drugs nauseated him and caused him to vomit, leaving a mess which she had to clean up. However, the proofs do not reveal how excessive might have been his use of drugs nor the number of times he vomited leaving a mess for her to clean up. But it does appear that while residing with the plaintiff he carried on a medical practice at High Bridge, N.J. and since their separation on April 1, 1951 has сarried on a medical practice at
It has been said that drunkenness alone, although habitual, does not constitute extreme cruelty per se, but is a part of the “for better or for worse” of matrimony. 2 Herr (2d ed.), sec. 767, page 166, and cases there cited. There is no proof in this case that defendant was a habitual drunkard or that he drank to excess. The law with respect to drunkenness is cited because there would seem to be some analogy between drunkenness and the use of drugs, both of which, used to excess, would affect the senses and conduct of the one using them. And the same rule appears to apply with respect to the use of drugs as with respect to excessive use of intoxicating liquors. In 17 Am. Jur., page 180, sec. 58, it is stated:
“Mere drunkenness or the intemperаte and habitual use of drugs on the part of one spouse is not such cruelty as entitles the other to a divorce on the ground of cruelty.”
The defendant‘s habit of dropping lighted cigarettes which resulted in holes being burned in the rugs, sheets, and mattress, was no doubt annoying and could, under certain circumstances, endanger the safety of the inhabitants of the house. However, I know of no case where such objectionable conduct is said to constitute extreme cruelty entitling the other spouse to a divorce.
And the same thing may be said respecting the plaintiff‘s testimony that her husband, the defendant, sat around the house watching television, and sleeping, and neglecting his medical practice. Such conduct was no doubt annoying and could easily give rise to dissension and quarrels between the husband and wife, but does not spell out a case of extreme cruelty under оur statute.
It appeared by the proofs that the plaintiff is a registered nurse and the defendant a practicing physician; that in the year 1947 they jointly established a nursing home having a
Approximately a year before the separation on April 1, 1951, plaintiff suffered an attack of pneumonia and was confined at that time to the nursing home for a рeriod of four or five weeks and, according to Dr. Danzig, she almost died at that time.
Dr. Henry Danzig was called in to examine and treat the plaintiff in the month of April 1951, sometime subsequent to the date on which the husband departed on April 1, 1951. He testified that he had known the parties socially for some three or four years prior to that time. He said that at that time he found the plaintiff suffering from nervous exhaustion; loss of weight; that she complainеd of insomnia; was extremely nervous; and was generally well under par. And upon his second appearance upon the stand at a later date, he enlarged somewhat upon the testimony given on the first occasion and said that he found the plaintiff in a debilitated state showing evidence of nervous exhaustion and mental disintegration; that from the history she gave him of her marital difficulties he found she had been under terrific
The strain to which the plaintiff was no doubt subjected in managing the nursing home; her duties there as a nurse as well as business manager; her household duties in taking care of her home and two children; her worry over the heavy financial obligations encumbering the nursing home; and the failure of her husband to exhibit the ambition and diligence in taking care of his medical practice that she thought he should, as well as his practice of gambling, spending extravagantly, and incurring debts, no doubt contributed materially to the rundown and debilitated condition in which Dr. Danzig found her following the departure of her husband in April of 1951.
As has been said, it is difficult to define with accuracy the exact meaning of the term “extreme cruelty” as used in the statute. MacArthur v. MacArthur, 135 N.J. Eq. 215, 219 (E. & A. 1944). I have no doubt the plaintiff suffered extreme annoyance and exasperation at the conduct of her husband, the defendant, about which she complains. However, I cannot find under the proofs in this case that the defendant hаs been guilty of such acts or course of conduct as to endanger the life or health of his wife, the plaintiff, or such as to render her life one of extreme wretchedness and
In accordance with the views above expressed, I find that the plaintiff has not established that the defendant has been guilty of extreme cruelty entitling the plaintiff to a divorce and that judgment accordingly will go against the plaintiff, dismissing her suit. Counsel should present a form of judgment in accordance with the foregoing decision.