104 N.J. Eq. 107 | N.J. Ct. of Ch. | 1929
This is an application to set aside a decree nisi advised by me herein on January 10th, 1928 (Docket 63-629) and affirmed in
I will consider these reasons in the order stated:
At the conclusion of the former hearing I was under the impression that Mr. Pfender was then actually residing, and, since October 1st, 1926, had continuously resided with his pastor, Dr. Dougherty, at Glen Ridge, New Jersey. In paragraph 12 of his petition for divorce he says "he left his home and went to live with friends at Glen Ridge, New Jersey, where he has since then been residing." In paragraph 13 of his petition he says: "Your petitioner has not lived with the defendant since the date last mentioned but has resided with friends at Glen Ridge." The only friends at Glen Ridge with whom he ever lived were Dr. and Mrs. Dougherty. At the hearing on the main case the testimony was to the effect that "he had lived there for some time." At the hearing on this application, both Mr. Pfender and Dr. Dougherty testified that Mr. Pfender had resided at Dr. Dougherty's home constantly from October 1st, 1926, until the latter part of December, 1927. From the statement of residence in the petition and the testimony and attitude of the petitioner and his pastor, I assumed, and I think it was intended by them that I should assume, that this man, a vestryman in his church, whose life had been threatened by his wife, and who posed as having been unjustly accused by that wife of an *110 improper intimacy with a woman employe, had fled for refuge and safety to the home of his spiritual adviser, and had resided there under his protection and guidance ever since. This presented a picture likely to excite the sympathy of the court and was undoubtedly designed to have a controlling influence on its decision. That it did so is quite apparent from the reference to Dr. Dougherty's testimony in my former conclusions; but how different the picture here painted by the petitioner himself with the aid of Miss Hass! Instead of his being the embodiment of virtue and injured innocence which he then appeared, we find him at the very time of the hearings in the main cause, secretly seeking the company of and continuing his association with the woman who was the cause of the insane jealousy of which he complained; and so secret was this association that no hint of it was given during the trial, and even the petitioner's pastor, under whose roof he had taken refuge, knew nothing of it. The admitted facts are that this association had continued from the date of the separation, and, during the summer of 1928, Mr. Pfender's interest in Miss Hass, and his concern for her comfort had become so great that he suggested the renting of a larger apartment by the Hass family where he might also have a room. The testimony was to the effect that when he stayed overnight at the Concourse apartment he was obliged to sleep on a couch or sofa in the living room. Accordingly in September, Mr. Pfender, Miss Hass and her mother rented an apartment at 911 Walton avenue, New York City, into which Miss Hass and her mother moved on October 1st, and for which Mr. Pfender paid a part, at least, of the rent. A room was reserved in this new apartment for him, he moved part of his clothing and personal belongings there, and made the apartment his New York home, eating there as a member of the family and sleeping there two or three nights a week. At the time of the former hearing the situation was that Mr. Pfender was actually maintaining two residences, one at Dr. Dougherty's in Glen Ridge and the other at the Hass apartment at 911 Walton avenue, New York City; the one a technical residence for the purposes of the divorce action — not a legal requirement, but evidently to create atmosphere; the *111 other, his domicillary residence where, according to the elevator operator, he was known as "Mr. Hass." Dr. Dougherty says he did not know of this situation and did not know where Mr. Pfender was spending his nights when he was not in Glen Ridge. During the holidays, in December, after the decree nisi, Mr. Pfender gave up his room at Dr. Dougherty's and removed all of his belongings to the Hass apartment, and thereafter made that his only residence and domicile. After January 1st, 1928, Dr. and Mrs. Dougherty dined in New York and went to the theatre with Mr. Pfender and Miss Hass on at least two or three occasions. Even then the doctor remained in entire ignorance of where Mr. Pfender was living and saw nothing in Mr. Pfender's association with Miss Hass to excite his curiosity or suspicion, although Mrs. Pfender had previously, in a conversation with the doctor, charged this woman with being the cause of all her troubles. If the doctor's ignorance of Mr. Pfender's whereabouts and associations during the period preceding his moving from Dr. Dougherty's home was as sublime and complete as he would have the court believe, it must have been due to the fact that he deliberately closed his eyes and ears to a situation which should have been self evident to one in his position. It is, of course, of small consequence where Mr. Pfender had his real residence. The important fact is that I was led to believe that the relations between Mr. Pfender and Miss Hass were at an end when the fact was quite to the contrary. Whether or not the testimony of Mr. Pfender and Dr. Dougherty, the false atmosphere, or what not, was intended to deceive the court, it must have been apparent to the most casual observer at the main trial that that was the result. If so, it was the obligation of those responsible for that deception to undeceive me. The court may excuse honest error, but it cannot condone either deliberate deception or conscious silence in the face of plain mistake resulting from deception unintended. The statements of residence as contained in the petition are misleading, to say the least. A statement by the petitioner under oath that he told his wife fully about all his relations with his alleged paramour, and a recital of those relations in part only when a full and complete recital would have disclosed to the *112 court that he had not made a full disclosure to his wife, and that there were substantial grounds for her jealous suspicions and accusations, and that the association of which his wife had justly complained was continuing at that time, is a withholding or concealment of material facts which the court cannot overlook, and displays an attitude which does not commend a suitor to favor in a court of equity. If because of this circumstance the court was deceived, it matters not whether that deception was the result of passive or active conduct on the part of the suitor, providing the suitor is conscious of the result and willing to profit by it. That this is the situation here I have no doubt. That I erred in my judgment and appraisal of the petitioner at the former hearing is now plain to me, but "to err is human" and no court is infallible. It is the realization of this fact, and the concern by reason of it that cause men to break under the weight of judicial responsibility. But however deep the error into which a court of justice may fall, irrespective of the reasons therefor, the opportunity to correct it is always welcome. That it is my duty to correct my own error now, I have no doubt. Let it be understood, however, that there is nothing in this case to indicate any knowledge on the part of the petitioner's solicitors of his deception or misconduct in the cause, or of any connivance or participation in the petitioner's fraud and deception by his solicitors. Their reputation and standing at the bar preclude any thought or suspicion of misconduct on their part and I expressly absolve them from any charge or suggestion of it.
In Clickner v. Clickner,
Mr. Pfender and Miss Hass were followed to South Salem by Mrs. Pfender, "Captain" Foster and his associates in another automobile. This coterie arrived there between five and six A.M. on June 30th, went to the bungalow, saw Mr. Pfender's car in the garage and being satisfied that Mr. Pfender and Miss Hass were in the bungalow, then went to a justice of the peace where Mrs. Pfender swore out a warrant charging Mr. Pfender with adultery. Then, accompanied by a constable armed with the warrant, they returned to the bungalow, knocked at the door and were admitted by Mr. Pfender, who was immediately placed under arrest. He was then clothed only in his pajamas and Miss Hass was in bed clothed only in her nightdress. After permitting Mr. Pfender to dress, the constable, accompanied by the rest of his party, took him before a magistrate where he was held under bail for a preliminary hearing. There were two bedrooms in the bungalow, one with a double, and one with a single, bed, the latter being termed Mr. Pfender's room. His clothing was in that room and he dressed there after his arrest. There is a sharp conflict of testimony respecting the condition of the beds in these two rooms. The detectives claim that the double bed in which Miss Hass slept showed unmistakable signs of having been occupied by two persons and that the single bed in the other room was made up and undisturbed, with Mr. Pfender's clothing lying thereon. This is vigorously denied by Mr. Pfender and Miss Hass. They say that both beds were occupied, the double bed by Miss Hass alone, and the single bed by Mr. Pfender, and that he was in that bed when he was awakened by someone walking on the gravel in front of the house, and that he sat up in bed, looked out of the window, and saw these men and Mrs. Pfender coming toward the house and asked what was wanted; that he then got up and admitted the party. Both bedrooms opened upon a living room and the doors to the bedrooms are separated only by the door frames which meet at a right angle. When Mr. Pfender and Miss Hass retired the night before they kissed each other good night, and, according to Mr. Pfender's story, they prepared for bed with the doors of their rooms open and they remained open all night. Miss Hass says her door was closed *116 while she was undressing but she partly opened it when she was ready for bed and that it remained so during the night. There is some question as to the manner in which the doors of the two bedrooms were hung. The door to Miss Hass' bedroom swings into that room, while Mr. Pfender claims that the door to his room opened by swinging into the living room, and that, consequently, when it was open it was impossible for anyone to see from one bedroom to the other. The door to Mr. Pfender's room does open into the living room now. The detectives claim that on the 30th of June it opened into the bedroom and that since then it has been rehung, so that it now swings into the living room. Admittedly there has been a change in the way it was originally hung, but Mr. Pfender says, and brings a witness to prove it, that it was changed at the time the bungalow was built. Much time was consumed by the taking of testimony of witnesses on this point, uselessly, as I think, for it is of small consequence how this door was hung. An open door, however hung, is but a slight barrier between two bedrooms occupied respectively by a man and a woman interested in each other as these two were, or inclined to commit adultery. Even closed doors have been known to yield to an undefended assault. The question which is presented to me under the admitted state of facts is whether under the rule of "inclination and opportunity" the charge of adultery has been proved. That the opportunity existed is admitted, but the inclinaton is denied.
That adultery by the petitioner for a divorce pending the running of the decree nisi will result in the vacation by the court of chancery of that decree, and in the dismissal of the petition for divorce, is well settled. Fuller v. Fuller,
Direct proof of adultery is not required; but to establish it by inference the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion of guilt. Berckmans v. Berckmans,
As between the two interpretations of a given set of circumstances, equally consistent with probability, that inference which favors innocence should be adopted. (Italics mine.) Biddle on Divorce, p. 69; Berckmans v. Berckmans,Hurtzig v. Hurtzig, supra. It has also been held that, as adultery is a crime, a divorce proceeding based upon that charge partakes strongly of the nature of a criminal proceeding, and that, therefore, it is necessary that the guilt of the accused be proved beyond a reasonable doubt. Berckmans v. Berckmans,Marchese v. Marchese, Johnson v. Johnson, supra. This proposition is questioned by Biddle on Divorce, p. 69, citingState v. Sharkey,
But to prove adultery by circumstances, criminal desire and an opportunity to gratify it need only be shown. Where these both concur, guilt is presumed. Berckmans v. Berckmans, supra;Black v. Black,
In the case sub judice, the inclination or criminal desire on the part of Mr. Pfender and Miss Hass can be determined only by inference from their previous conduct. It has been said that facts in themselves inconclusive may be made conclusive by proof of falsehood or concealment on the part of the offender. 2 Bish.Mar. D. § 629. Pfender's relations with Miss Hass were certainly effectively concealed from everybody connected with this cause, even from Dr. Dougherty. Secrecy is a concomitant of a guilty love. Their attachment was no doubt a guilty one. It began while Pfender most certainly owed every duty of a husband to his wife and continued in secret throughout the whole period of the separation and during the course of the previous trial. Pfender's presents to Miss Hass, insufficiently explained, as I think, furnish strong suspicion of his guilt, and, in connection with other evidence, help establish the offense. 2 Bish. Mar. D. § 630. It has also been said that "the stronger the affection, the more perfect the concord, between married persons, the less likely is it that adultery will be committed." 2 Bish.Mar. D. § 621. Contrariwise, the less affection and the more discord between married persons, the more likely is it that adultery will be committed. There was an abundance of discord between the Pfenders. *119
The peculiar thing about the relations between Miss Hass and Mr. Pfender is that they can see nothing wrong in them. Mr. Pfender insists that he is a man of honor and that Miss Hass is a lady, and that all his attentions to her were grounded upon his love and affection; but love has spelled the doom alike of kings and fools, and it has been said that "love darkens reason, and confounds discretion." That a man of fifty-three and a woman of twenty-five might spend a night alone in a secluded bungalow without committing adultery, may be admitted; to deny it would be to deny the existence of virtue and honor. But in the instant case it could be the more easily believed if these two had not previously been on more intimate terms than the proprieties of everyday life admit; and we must not lose sight of the fact that, however honorable and virtuous they claim to be, they were still human and had not previously hesitated to indulge in amatory conduct likely to excite the baser passions, and this while one was an undivorced husband separated from his wife, and the other a young woman, the primary cause of that separation, and with full knowledge that her lover was not free to bestow his affections upon her.
It is with the probabilities of human conduct that we are here concerned and not with that of a superman or an ultra-virtuous woman, and these probabilities must be determined in the light of the former conduct of the parties. It is argued that if the conduct of these parties admits of two interpretations, one of guilt, and the other of innocence, that which favors innocence should be adopted. The rule as laid down by Chancellor Green in the Berckmans Case is "where the conduct of a party admits of two interpretations, equally consistent with probability, the one involving guilt and the other consistent with innocence, the rule of evidence, as well as the dictates of justice, require that the interpretation should be favorable to innocence." (Italics mine.) In invoking the rule quoted, counsel ofttimes fail to appreciate the import of the italicized words. When the human probabilities, as contrasted with the human possibilities, are here considered, I do not think it can be said that the conduct of these parties admits of two interpretations equallyconsistent with probability. *120
I have carefully considered the evidence submitted on this application in the light of that submitted in the main case, and, with a full realization of my own fallibility, I have reached the conclusion that the requirements of the "inclination and opportunity" rule have been fully met, and that adultery was committed as charged, and I so find. The result is that the decree nisi will be vacated and the petition for divorce dismissed.