14 N.J. Misc. 381 | New York Court of Chancery | 1936
The wife’s petition seeks a decree of divorce from the bond of matrimony on the ground of extreme cruelty under P. L. 1928 ch. 187 p. 494 (Cum. Supp. Comp. Stat. 1911-1924 p-989 § 62-Sa), commonly known as the Blackwell act, which provides that “Divorce from the bonds of matrimony may be decreed for extreme cruelty in either of the parties, * * * provided, that no petition for divorce shall be filed until after six months from the date of the last act of cruelty complained of.”
The husband answers denying the allegations of the petition and counter-claims for divorce under the same statute. Both claims are at issue and have come to final hearing.
During the progress of the hearing certain questions arose as to the form of both petition and counter-claim, and as to the competence of evidence of alleged acts of cruelty which occurred during the six months’ period immediately preceding the filing of the petition and during the pendency of the suit, and it was stipulated that such evidence be received subject to the court’s subsequent determination of its competence, under such amendments of the pleadings to be made as should be found proper and necessary to have them conform to and support the proofs. Both parties desire that all of the evidence offered on each side be considered by the court, to the extent of its jurisdiction to consider it, under such suitable amendments of the pleadings as the court may properly make by consent, and such desire accords with the policy of the law that the court should so far as possible hear the whole case between the parties. Williams v. Winans, 22 N. J. Eq. 573, 577; Dowling v. Dowling, 93 N. J. Eq. 159; 115 Atl. Rep. 378; Von Bernuth v. Von Bernuth, 76 N. J. Eq. 487; 74 Atl. Rep. 252.
The question of the competence of this evidence is involved in and will be disposed of by the court’s determination of the reserved questions with respect to the form of the pleadings, and will be discussed in connection therewith.
The first inquiry relates to the form of the petition and to the extent to which it may be amended by consent. It
“By reason of the defendant’s cruelty, the petitioner has had no personal (sic) relations with him since March of nineteen hundred and thirty-four.”
The petition then goes on to allege that since June 9th, 1934, and until April 6th, 1935, the defendant failed to adhere to his promise to cease from abusing her; that throughout that whole period he beat and abused her until she was finally compelled to separate herself from him. And then follows the allegation that “more than six months have elapsed since the act of cruelty complained of in June of 1934, and petitioner further alleges that in fact and by operation of law, her agreement of condonation was conditional upon a discontinuance of any further cruelty on the part of the defendant, and he having failed to perform the said condition, nullified thereby her act of condonation; and petitioner relies therefore upon the acts of cruelty up to June, 1934, as the basis of this petition for divorce.”
It will be noted that the petition alleges acts of cruelty committed within the six months’ period immediately preceding the filing of the petition, but does not complain of such acts as constituting (in conjunction with the earlier
The petition in this case sets up acts which took place within the proscribed six months’ period as constituting not a part of the cause of action, but a breach of the condition of a supposed condonation. If the allegations with respect to condonation were sufficient, taken as true, to establish a condonation in fact, there could be no valid objection to the inclusion of the allegations of subsequent acts as showing a breach of the condition. While condonation is ordinarily an affirmative defense which to be available must be pleaded by the defendant (Burke v. Burke, 113 N. J. Eq. 77, 80; 166 Atl. Rep. 140; Wallace v. Wallace, supra; Rich v. Rich, 109 N. J. Eq. 216; 156 Atl. Rep. 442), it is not improper for the petitioner to anticipate such a defense by setting it up in the petition and then alleging acts amounting to a breach of its condition. Stevens v. Stevens, 14 N. J. Eq. 374, 375; Newton v. Newton, 86 N. J. Eq. 129, 131; 97 Atl. Rep. 294.
The failure of the petition to allege facts from which con-donation can be spelled out leaves the allegations of subsequent acts, pleaded as constituting a breach of the condition, mere surplusage so far as concerns the avowed purpose of the petitioner in pleading them. But for the stipulation they would be open to objection as being impertinent. But if by amendment they may be retained as relevant for any other purpose such amendment may be made, and this depends upon whether proof of them may properly be received at the hearing although they occurred within the proscribed six months’ period. If such facts are relevant for any purpose there can be no objection to alleging them in the petition in spite of the fact that they do not constitute part of the cause of action. Dodd v. Wilkinson, 42 N. J. Eq. 647, 651; 9 Atl. Rep. 685; Leslie v. Leslie, 50 N. J. Eq. 155; 24 Atl. Rep. 1029; affirmed on main case, 52 N. J. Eq. 332; 31 Atl. Rep. 724; Daly v. Watson, 118 N. J. Eq. 258; 178 Atl. Rep. 781 ; see Lutz v. Lutz, 52 N. J. Eq. 241; 28 Atl. Rep. 315. On
Assuming always that the defendant’s acts which occurred within the proscribed period are set up in the petition not as in themselves or in conjunction with the defendant’s earlier acts constituting the cause of action, may not evidence of such later acts be admitted and considered by the court as giving character to the earlier acts, without doing violence to the statutory proviso f Is not the nature of the offense of extreme cruelty such as to justify and sometimes require a consideration of all of the defendant’s acts down to and including the pendency of the suit, as tending to corroborate, explain or characterize the acts upon which the cause of action is based ? Such has been the established rule in actions for divorce from bed and board for extreme cruelty and in separate maintenance suits based upon extreme cruelty. Cook v. Cook, 11 N. J. Eq. 195, 201; Cavileer v. Cavileer, 94 N. J. Eq. 160, 166; 119 Atl. Rep. 101; see O’Brien v. O’Brien, 103 N. J. Eq. 214, 220; 142 Atl. Rep. 898; affirmed, 105 N. J. Eq. 250; 147 Atl. Rep. 911; English v. English, 27 N. J. Eq. 579, 584; 19 C. J. 180 § 841- So that unless the term “extreme cruelty” has acquired a different connotation under the Blackwell act the same rule should be applied.
The term “extreme cruelty” as used in the statute empowering the court to grant decrees of divorce from bed and board (P. L. 1907 ch. 216 p. 474, § 8; 2 Comp. Stat. pp. 2028, 2029) has acquired a definite connotation through many years of judicial interpretation, both in the ecclesiastical tribunals and in our own courts. See Smith v. Smith, 40 W. J. Eq. 566, 593. As enunciated in a late case the general rule is that to warrant a divorce from bed and board on the ground of extreme cruelty of the husband such conduct by the husband must be shown as will justify the court in believing that if he is allowed to retain his power over his wife, and she is compelled to remain subject to him, her life or her health
Such being the meaning of the term at the time of the enactment of the Blackwell act, it must be assumed that the legislature in using the identical words “extreme cruelty” in the Blackwell act intended to affix to the offense the same attributes it has possessed in the bed and board cases (see In re Sifola, 101 N. J. Eq. 540, 542; 138 Atl. Rep. 369; Stale v. Garthwaite, 23 N. J. Law 143; 59 C. J. 1050 § 620), unless the proviso of the act has the effect of changing the character of the offense.
In my judgment the character of the offense of extreme cruelty under the Blackwell act is the same as it is in the bed and board cases. See Sachse v. Sachse, 107 N. J. Eq. 41; 151 Atl. Rep. 744; Dinnebeil v. Dinnebeil, 109 N. J. Eq. 594; 158 Atl. Rep. 475; Restaino v. Restaino, 110 N. J. Eq. 563; 160 Atl. Rep. 345 (cases under the Blackwell act wherein the same definition has been adopted). See, also, Youmans v. Youmans, 3 N. J. Mis. R. 576, 577; 129 Atl. Rep. 122. The effect of the proviso of the act is merely to change the point of time at which a cause of action for extreme cruelty must vest or accrue. In the bed and board cases the cause of action must be vested not later than at the time of the filing of the petition. In actions under the Blackwell act the cause of action must accrue at least six months prior to the time of the filing of the petition.
Once the cause of action in either a bed and board case or
While it is imperative that the cause of action in bed and board cases vest not later than at the time of the filing of the petition, and in cases under the Blackwell act not later than at a date six months prior to the time of the filing of the petition, nevertheless the cause of action in either case may vest at a point of time preceding the time at which it must accrue. See Gartner v. Gartner, 109 N. J. Eq. 112; 156 Atl. Rep. 673. A cause of action for extreme cruelty in either case vests at that moment of time when the offense is committed (see Coe v. Coe, 97 N. J. Eq. 57, 59; 127 Atl. Rep. 39; affirmed, 99 N. J. Eq. 422; 181 Atl. Rep. 922), that is to say, at a time when an act or acts have been perpetrated which would be sufficient then to induce the court to believe that there is reasonable apprehension of injury to the health or life of the aggrieved spouse. See Klein v. Klein, 6 N. J. Mis. R. 359, 360; 140 Atl. Rep. 233. Further acts of cruelty may aggravate, and may continue the extreme cruelty as a cause of action (Cf. Adler v. Adler, 110 N. J. Eq. 381, 392), but they do not postpone the vesting of the cause of action if they are not needed to constitute the offense. Heiiee if the act or acts are sufficient to vest a cause of action prior to the time of the filing of the petition in a bed and board case or preceding the date of the proscribed six months’ period in a case under the Blackwell act, repentance on the part of the defendant at any time after such vesting cannot amount to a defense in itself.
While the cases just considered were actions for divorce from bed and board for extreme cruelty, there appears to be no decision under the Blackwell act at variance with the view that protestations of repentance after the cause of action accrues may be considered as explanatory of the acts complained of as constituting the cause of action. The case of Coe v. Coe, supra, lends support to the view that the cause of action is vested when the offense is committed. The view that protestations of repentance are not per se a defense is also in accord
The case of Hart v. Hart, 99 N. J. Eq. 373; 131 Atl. Rep. 903, decided merely that an aggrieved spouse may institute an action under the Blackwell act at a date which is six months from the commission of the last act of cruelty complained of and need not await the expiration of six months from the date of the separation of the parties. See, also, Michels v. Michels, 110 N. J. Eq. 393, 395; 160 Atl. Rep. 518 Ross v. Ross, 105 N. J. Eq. 170; 147 Atl. Rep. 193; affirmed, 106 N. J. Eq. 277; 148 Atl. Rep. 920; Klein v. Klein, supra. The court in the Hart Case recognized the rule that the cause of action must vest at least six months prior to the filing of the petition, but no question of repentance was involved.
The case of Gartner v. Gartner, 109 N. J. Eq. 112, involved the communication of a venereal disease to the wife—an act of- extreme cruelty per se (see Fallon v. Fallon, supra), and apparently was the only act of extreme cruelty complained of. At the time of the institution of the action the husband was insane, but at the time of the commission of the act of extreme cruelty and for some time thereafter he was mentally competent. The court held that such subsequent insanity was no defense as the cause of action was complete before the husband became insane. The insanity of a defendant subsequent to the accrual of a cause of action against him for-extreme cruelty may be a material fact, however, if it be explanatory of or characterize the act or acts of cruelty relied upon as constituting the cause of action. On the other hand,
For the above reasons, the petition may be amended so as to allege as the cause of action all acts now set forth therein down to the date of October 29th, 1934, six months prior to the filing of the petition. Beyond that point the petition cannot be amended so as to add any allegations with respect
The second inquiry concerns the extent to which the counter-claim may be amended or supplemented to include as part of the cause of action acts of alleged extreme cruelty on the part of the petitioner which are proved to have occurred less than six months before the counter-claim was filed, and acts which occurred after the counter-claim was filed.
Here we are not confronted with the jurisdictional conditions contained in sections 6 and 7 (P. L. 1907 ch. 216 pp. 476, 477; 2 Comp. Stat. pp. 2029, 2030) of the Divorce act which preclude the filing of a supplemental petition, since the court has jurisdiction of the counter-claim not through the service of process but by virtue of its jurisdiction of the petition. P. L. 1916 ch. 57 p. 102; Cum. Supp. Comp. Stat. 1911-1924 P. 991 § 62-14b; Rule 261; Von Bernuth v. Von Bernuth, supra; Duke v. Duke, 70 N. J. Eq. 135; 62 Atl. Rep. 466; affirmed, 72 N. J. Eq. 434; 65 Atl. Rep. 1117. There is no restraint upon tin court’s power to permit the filing of a supplemental counter-claim setting up as part of the cause of action for extreme cruelty acts which occurred less than six months before the filing of such supplemental counter-claim unless it is to be found in the proviso of the Blackwell act, and the question therefore is whether the proviso applies to causes of action brought by counter-claim.
The counter-claim in this case was filed on June 25th, 1935, and alleges a series of acts on the part of the petitioner of which the last occurred during September, 1934, more than six months before the counter-claim was filed. It contains an allegation that subsequent acts of cruelty were committed and claims “the right” to file an amendment (by way of supplement) at a subsequent time to include allegations of such later acts after the lapse of six months following their
There never has existed a doubt that the proviso of the act does not preclude a defendant from setting up acts occurring within the proscribed period strictly by way of recrimination, if such acts constitute a cause of action (Cilente v. Cilente, 104 N. J. Eq. 605; 146 Atl. Rep. 469), and in my judgment such acts may be pleaded and proved as a basis for affirmative relief by way of counter-claim.
The proviso specifically applies only to petitions. It does not mention counter-claims. While the provisions of rules 70, 71 and 261 make the counter-claim a substitute for the cross-bill or cross-petition under the practice existing prior to 1915 (McAnarney v. Lembeck, 97 N. J. Eq. 361; 127 Atl. Rep. 197), the failure of the legislature to include in the proviso any reference to counter-claims while at the same time specifically providing for petitions creates a doubt as to whether the legislature intended to extend the restriction to suits brought by counter-claim.
This doubt may be resolved by examining the reasonableness of the result if the restriction is so extended, bearing in mind the legislative purpose in adopting the proviso. Wheeler v. Ellis, 56 N. J. Law 28; 27 Atl. Rep. 911; Sivade v. Smith, 104 N. J. Eq. 528; 146 Atl. Rep. 364. The proviso restricts the operation of the enacting clause by setting up a time limitation upon the injured party’s resort to the remedy created thereby. Unlike the usual statute of limitation it fixes a time before which, instead of a time after which, suit may not be brought, a terminus a quo instead of a terminus ad quern. The difference is one of essence. The ad quem limitation, when available, furnishes a permanent bar to any remedy and so indirectly destroys the right. For this reason
Whether the proviso was intended to apply to a cause of action set up by counter-claim, therefore, depends solely upon whether, if so applied, it will reasonably tend to further the public policy for which it was designed. In the Ooe Qase this court defined the public policy to be “to give the injured party time to calm down and reflect, put the offender on probation, and to forgive if pardon is deserved.” The purpose of the enforced delay is to discourage an impulsive, ill-advised resort to the court, not to withhold the remedy from an injured party who deliberately seeks it. The legislative scheme for securing deliberation is delay. Whether delay is the most effective means to that end is immaterial; at least it is a means reasonably calculated to secure the object sought when applied to a petition, for in that case it effectually postpones litigation for the desired interval of time.
But if it is applied to a counter-claim it fails to accomplish this legislative purpose. Litigation has already been instituted. The defendant is involved therein notwithstanding the proviso. The opportunity for reflection has passed. The purpose for which the period of reflection was designed has been defeated. If under the circumstances the defendant has sufficient self-control to maintain a calm mind, there is no longer any point to it. The petitioner has demonstrated an unrepentant attitude by the institution of the suit. It would be inconsistent and absurd to count the time occupied by the pendency of the suit as a period of probation, nor can the
Wot only does the purpose of the proviso fail if it is attempted to apply its provisions to the counter-claim, but the result of such application places the defendant at a distinct disadvantage in the litigation brought against him. In such suit the defendant is free to defend by setting up in recrimination extreme cruelty consisting of acts some of which may have been committed less than six months before he files his answer. Assume his defense successful. Is he to be denied affirmative relief because all of the acts constituting his cause of action may not have occurred more than six months before, and told to return later on and file an independent suit in which he may be obliged to prove the acts all over again? Rather than place upon him such purposeless hardship the court might delay making its decree until the six months have passed and then after suitable amendments of the pleadings grant him affirmative relief in the same suit. But in either case the delay cannot reasonably be considered as furthering the legislative purpose.
Por these reasons it seems to me that the clear policy and purpose of the proviso lies in its application to suits brought by petition only, and that such construction is in accord with the established rules applied in the solution of similar statutory ambiguities. Thus the Attorneys’ Lien act (P. L. 1914 ch. 201; Cum. Supp. Comp. Stat. 1911-1924 p. 1805 § 116-76), providing that “after the service of a summons and complaint in any action at law, or the filing of a bill of complaint or petition in the court of chancery, or the service of an answer containing a counter-claim in any action at law, the attorney * * * shall have a lien,” &c., has been construed as not extending a lien to a solicitor who files a counterclaim in equity (i. e., a cross-bill or cross-petition under the practice prior to 1915. See 4 Mercer Beasley L. Rev. 90).
Such construction is also in accord with the policy of equity already adverted to, to render a complete decree adjusting all rights and protecting the parties from future litigation.
The defendant under the stipulation and in one pleading may therefore amend his counter-claim to conform to the proofs adduced as to the petitioner’s acts of cruelty from September, 1934, until thie filing of the counter-claim on June 25th, 1935, and supplement his counter-claim as to acts of cruelty proved to have been committed since the filing of the counterclaim down to the termination of final hearing. See Rules 63, 71. The original cause of action under the counter-claim was for an absolute divorce for extreme cruelty. The amendment and supplement setting up the subsequent acts of cruelty are germane to the original cause of action if germane they need be in view of the stipulation of the parties. See Fodor v. Kunie, 92 N. J. Eq. 301, 304; 112 Atl. Rep. 598; O’Donnell v. McCann, 77 N. J. Eq. 188, 193; 75 Atl. Rep. 999; Tyree Chancery Pr. (2d ed.) (1933) §§ 35, 43.
After the amendments shall have been made as above directed, and suitable answers filed, the factual issues will be determined by a consideration, to the extent and for the purposes above indicated, of all of the evidence of alleged cruel conduct on the part of each of the parties toward the other down to the last day of the hearing.