Jacobs v. JacobsJacobs v. Jacobs
In this matrimonial action plaintiff wife appeals from a judgment dismissing her complaint for separate maintenance and granting defendant a divorce on his counterclaim predicated upon simple desertion — her willful refusal to have sexual relations. Plaintiff also appeals from the award of a $7500 counsel fee to her attorneys, asserting it to be inadequate. Defendant cross-appeals from thosе portions of the judgment awarding support to his children and assessing the above counsel fee to plaintiff‘s present attorneys and a fee of $500 to her former attorney.
The parties were married on December 21, 1946. Two children were born, Ronald in 1952 and Mark in 1954. Between 1950 and 1952 defendant started a business, Boulevard Steel Company, in which plaintiff was given an interest. Shortly thereafter their business and social acquaintance, I.B. Steinberg, was made a one-third partner in Boulevard. In 1955 the parties purchased a home in Tenafly, New Jersey. Although the business apparently prospered during the next few years, the marriage did not. Ultimately, on July 1, 1964 defеndant moved out of the marital residence.
Trial of the case (excluding many pretrial motions) consumed 22 separate days protracted over a 10-month period. Each party testified. In addition, each called numerous witnesses, among whom were accountаnts, psychiatrists, friends, relatives and business associates. All were examined at great length on both direct and cross-examination.
Following the hearings the court filed a written “statement of facts and conclusions of law.” Therein, among other things, it found that the proofs demonstrated that plaintiff was guilty of simple desertion in that, сommencing on July 1, 1963 and for a period of two years thereafter, she persistently and willfully refused to indulge in normal sexual relations with defendant; that defendant‘s conduct to plaintiff did not constitute extreme cruelty and that his act in leaving the home was not acquiescence in her desertion. Further, the court stated that uрon the evidence adduced “defendant was not required to stay and suffer the indignities offered him and to submit to further insult as well as injury.” Thereupon, judgment was entered dismissing plaintiff‘s complaint for separate maintenance and awarding defendant a divorce on his counterclaim on the ground of simple desertion. The second count of his counterclaim, which charged extreme cruelty, was dismissed. Plaintiff‘s motion for a new trial was denied.
Plаintiff first argues that there is no corroborative proof for the finding that she refused to have sexual relations or that this refusal commenced on or about July 1, 1963 and lasted for two years thereafter. The court found corroboration not only from the testimony of specific witnesses but also from the surrounding circumstancеs shown by the totality of the evidence adduced. After considering all the proofs, the court concluded that defendant‘s testimony was given in “a most forthright and open manner” and, to the contrary, plaintiff‘s testimony was “unworthy of belief.”
Defendant testified that the last occasion upon which plaintiff permitted him to have rеlations with her was on or prior to July 1, 1963; that at no time thereafter would she respond to his sexual advances, and that she refused his request for sexual intercourse at all times thereafter. Plaintiff, in her extensive testimony, never denied defendant‘s testimony on this issue, and the absence of this denial was noted by the court as an аffirmance of the facts testified to by him. Helen Goldenberg, plaintiff‘s best friend and a witness for her, testified that at a reconciliation meeting held late in 1963, at which she was present, defendant said that they didn‘t live as man and wife and that plaintiff replied that “she was afraid to have any relations with Sam” and further admitted that this situation hаd existed from
It cannot be denied that in these cases there must be corroboration of the testimony of the one spouse that the other willfully avoided conjugal intercourse. Crowell v. Crowell, 33 N.J. Super. 272, 276 (App. Div. 1954). However, it is well recognized that corroborative proof of this kind of complaint is difficult and it is for this reason that the hearsay restrictions are relaxed to permit easier access to the truth. Pope v. Pope, supra, 44 N.J. Super., at 487. Consequently, unusually heavy reliance must ordinarily be placed upon the capacity of the trial judge, observing and hearing the witnesses, to determine whether the entire picture carries with it a moral conviction that can be sensed from all the surrounding circumstances. Id. at 488. See also Franklin v. Franklin, 140 N.J. Eq. 127, 129 (E. & A. 1947); Haskell v. Haskell, 99 N.J. Eq. 399, 402 (E. & A. 1926). The trial judge, upon a consideration of all the testimony and after observing and hearing the witnesses and weighing their credibility, found that the entire picture did carry with it a moral conviction, that could be sensеd from the testimony of witnesses as well as from all the surrounding circumstances, that plaintiff willfully, continually and obstinately and without justification refused to have sexual intercourse with defendant from July 1, 1963 to July 1, 1965. This factual finding and the determination that it was sufficiently corroborated is more than reasonably supported by the credible evidence in the record. Thus, we hold this argument to be without merit.
Plaintiff, in support of this assertion, relies upon Pierson v. Pierson, 119 N.J. Eq. 19 (E. & A. 1935); Lammertz v. Lammertz, 59 N.J. Eq. 649 (E. & A. 1899), and Reid v. Reid, 21 N.J. Eq. 331 (Ch. 1871). All of these cases are inapposite.
In Pierson v. Pierson, supra, the сomplainant wife refused to have sexual relations with her husband because he was seeing another woman; she found contraceptives in his pocket and they had continual disagreements as to money matters. Complainant wanted her husband to leave and not come back. After about four months he did leаve. Thereafter, when she filed an action for separate maintenance he counterclaimed for a divorce upon the basis of desertion — her refusal to have sexual relations with him. The court, in denying him this relief, said:
He does not claim that he was justified in leaving his home on the ground that his wife was guilty of a matrimoniаl offense other than her refusal to have sexual intercourse, but this refusal had continued * * * a period of about four months. Until and unless it had continued for a period of two years, the complainant would not have been guilty of a matrimonial offense justifying the defendant‘s separation from her. He cannot maintain that it would have so continued had he remained in the home. He has failed to establish * * * that the complainant deserted him on May 4, 1931, and that ever since that time her desertion has been willful, continued, and obstinate. Assuming that she was the deserter as of May 4, 1931, because of her refusal of sexual intercourse, such desertion wаs neither willful nor obstinate over a period of two years [119 N.J. Eq. at 23].
In Lammertz v. Lammertz, supra, defendant wife, left the home of her husband and remained away more than two years, during which she made no overture for a return. In defending against her husband‘s divorce action based upon desertion she asserted that she left because her husband had left her bed and slept in another room for months before she departed. The court found that this did not justify her departure. However, again this conclusion was based upon the fact that she at no time expressed her willingness to return and she left little hope that she would do so. Thus, the court found her desertion to be obstinate and conferred upon her husband a right to divorce. Id. at 650.
In Reid v. Reid, supra, defendant husband admitted that he had left his house more than two years before plaintiff instituted her divorce action. However, in his answer, and by way of recrimination, he asserted that for a year before his desertion she refused marital intercourse with him. The court stated that although the refusal of marital intercourse without sufficient reason is a wrong and cannot be justified, nevertheless, it is not sufficient to justify desertion on any other unlawful marital dereliction on the part of the party aggrieved. Again, the court in reaching this conclusion noted that defendаnt left his house with the intention of never going back while plaintiff was there and that he never offered to take her back or provide her a home. Id. at 332-333.
In no one of the above cases did the court specifically hold that the leaving of the matrimonial abode by the aggrieved spouse before the expirаtion of the two-year statutory
To the contrary, in Stieglitz v. Stieglitz, 92 N.J. Eq. 292, 294 (E. & A. 1920), the court said: “For the husband in the present case was at liberty to abandon his wife after bona fide and repeated trials to have sexual intercourse with her and her refusal to permit him.” Likewise, in Haskell v. Haskell, supra, 99 N.J. Eq. 399, the husband sued the wife for divorce on the ground of desertion — her refusal to have marital relations with him. The court granted him a divorce even though his proofs indicated that he left his wife only 1 1/2 years after her refusal had commenced. The court found that the husband had endeavored to reason with his wife in regard to the marital rights and that in each instance she rejected him. Further, it noted that at the time he left “his physical and mental condition had become such as to compel him to do so.” At 401.
Thus, from a reading of the above-cited cases, we hold that where one spouse charges the othеr with willful refusal to have sexual relations, the fact that the aggrieved party leaves the marital abode before the expiration of the two-year desertion period does not per se toll the remaining portion of the period. Rather, such leaving by the aggrieved party is a fact which should be considered together with all the other facts and circumstances in resolving whether the desertion was willful and obstinate during the entire two years, or whether the leaving by the aggrieved spouse converted the situation into one that was consensual. In resolving this question, inquiry must be made as to whether the aggrieved spouse, following his departure, continued to make bona fide efforts for reconciliation.
In the instant case the court found, and it is reasonably supported by the evidence, that defendant continuously for the entire period of two years, both before and after his departure, personally and through intermediaries, made numerous
Further, the court, based upon plaintiff‘s actions, concluded that she was “hostile, mean, cruel and despotic” to defendant and that she was guilty of “opprobrious” conduct. Although the court‘s “statеments of facts and conclusions of law” do not contain an express finding that plaintiff was guilty of “extreme cruelty,” that conclusion is nevertheless vividly implicit therein. No contrary inference arises because of the court‘s dismissal of the second count of defendant‘s counterclaim. This was done, not upon the merits, but rather “[i]n view of the affirmative relief granted defendant on the first count * * *.” In any event, in modern understanding, a total rejection of sexual intercourse constitutes grounds for divorce predicated upon extreme cruelty. Goldstein v. Goldstein, 97 N.J. Super. 534, 535 (Ch. Div. 1967); Melia v. Melia, 94 N.J. Super. 47, 51 (Ch. Div. 1967).
For all of the reasons stated, and in light of all of the facts and circumstances here prеsent, we find that defendant was justified in leaving the marital abode on July 1, 1964, and his leaving did not toll the running of the two-year desertion period. Therefore, the trial court properly determined that defendant was entitled to a divorce on the ground of desertion predicated upon plaintiff‘s unjustified and willful refusal to have sexuаl relations with him for the two-year period from July 1, 1963 to July 1, 1965. Likewise, this conclusion merited the dismissal of plaintiff‘s action for separate maintenance.
We have considered all the other points raised by plaintiff on her appeal and by defendant on his cross-appeal and find that they all lack merit. We cоnclude that the trial court did not mistakenly exercise its discretion in making the following orders: a counsel fee of $7500 to plaintiff‘s present counsel and a fee of $500 to her former counsel; an award of $50 a week for the support and maintenance of
Next, we consider the application of plaintiff‘s counsel for fees on this appeal. They seek $17,000 plus costs in the amount of $6844.69. They have previously received $7500 from defendant in accord with the trial court‘s mandate. Plaintiff personally paid them an additional $3000 trial fee. They have been awarded an additional $1000 for post-judgments applications which defendant has paid. Also, they have received as appellate fees from plaintiff‘s friends and relatives the sum of $10,000.
Under all these circumstances, and in the light of the outcоme of this appeal, we direct defendant to pay plaintiff‘s counsel the sum of $3500 on account of appellate fees and $3500 on account of appellate costs. This allowance is made without prejudice to counsels’ right to charge plaintiff, in accordance with their agreement with her, such additional reasonable fees as may be warranted by their services on her behalf on this appeal.
Judgment affirmed.