O'Brien v. O'Brien

• Decision Date: 24 August 1928
• Citation: 142 A. 898
• Parties: O'BRIEN v. O'BRIEN.
• Court: New Jersey Court of Chancery

142 A. 898

O'BRIEN

v. O'BRIEN.

Court of Chancery of New Jersey.

Aug. 24, 1928.

[Copyrighted material omitted.]

Bill for maintenance by Lauretta V. O'Brien against Thomas O'Brien, in which defendant filed counterclaim for divorce. Decree dismissing complainant's bill, and granting defendant's counterclaim for divorce, advised.

Wall, Haight, Carey & Hartpence, of Jersey City, for complainant.

L. Edward Herrmann, of Jersey City, for defendant.

FALLON, Vice Chancellor. This matter is before the court on complainant 's bill for maintenance, based on the twenty-sixth section of the Divorce Act (2 Comp. St. 1910, p. 2038, § 26), and defendant's counterclaim for divorce, based on the ground of desertion. The parties were married April 25, 1922, and lived together for about three weeks, when the complainant abandoned the defendant. She says she was obliged to leave him "on account of his cruelty to her." The cruelty is not specified. The only cruelty recognized by our law, which may warrant one spouse in abandoning another, is such as denominated "extreme cruelty," which our Court of Errors and Appeals has defined to be such cruel conduct as endangers the safety of the person or the health of the aggrieved party, either actually inflicted or reasonably apprehended. Cavileer v. Cavileer, 94 N. J. Eq. 160, 119 A. 101. The complainant's bill recites that on October 11, 1922, she filed a petition in this court against the defendant for a divorce from bed and board, and "therein alleged certain acts of cruelty." She thereby assumed the burden of proving her allegations, for, as stated in Taylor v. Taylor, 73 N. J. Eq. 745, at page 748, 70 A. 323, 324, "she must show a case of extreme cruelty such as would entitle her to a decree of separation. The courts can know no middle ground."

The defendant filed answer to the aforesaid petition, and a hearing on such petition and answer resulted in a decree dismissing the petition, because of petitioner's failure to substantiate the allegations thereof. The complainant, in her aforesaid petition for divorce, alleged as acts of cruelty, said to have been perpetrated upon her by the defendant, offenses of a nature which she might reasonably expect would effect his ostracism from friends, business associates, and all decent society. In testifying in her aforesaid divorce suit, she repeated and amplified the allegations of her petition. She alleged, among other things, that almost from the time of her marriage to the defendant he began to show signs of moral degeneracy, asked her to cohabit with him in unnatural and improper ways, to do things to him which showed he had a perverted mind, and committed such acts of cruelty against her genital organs and parts that she was obliged to consult a physician for treatment; that by reason of his alleged "acts of cruelty and inhuman treatment" she became a physical wreck, and her nerves were in such a condition that, even if she were willing to forgive the alleged acts of cruelty, it would be dangerous to her health and life to go back and cohabit with him. She charged the defendant, in her testimony, with having been a party to an abortion committed upon a young woman whom she named, and also with having committed adultery. Her charges, though oft-repeated, were not corroborated or substantiated.

The record of complainant's aforesaid divorce suit (Docket 52, p. 480), offered and admitted in evidence in the case sub judice, shows that it was heard before Vice Chancellor Lewis, who on March 8, 1926, advised a decree dismissing the petition. The decree which was entered March 10, 1926, reads in part as follows:

"The court having read and considered said petition and the answer, and heard the testimony and proofs offered by petitioner, and being satisfied that the petitioner has failed to substantiate the allegations of her petition, and the court being satisfied that the bill of complaint should therefore be dismissed as against the defendant, it is on this 8th day of March, 1926, ordered that the petition filed herein be and the same is hereby dismissed."

The court must assume that the divorce suit was adjudicated upon its merit, and that the decree entered therein is res adjudicata of the matters complained of therein, and, as the complainant herein relies upon the same matters alleged in the former suit, the aforesaid decree is dispositive of the case sub judice. Upon my making a statement to such effect at the hearing of this cause, counsel for the complainant urged that the decree in the former suit should not be so regarded. It is clear to me that said decree must be regarded as having settled the rights of the parties as to the issues involved and decided in the proceeding upon which it was based, and dispositive of the case sub judice. West New York Improvement Co. v. West New York, 88 N. J. Eq. 571, 104 A. 611. The complainant cannot nullify the res adjudicata rule by changing the character of the relief sought from that of a decree of divorce a mensa et thoro to a decree for maintenance, nor be held to question the decree in the former suit by collateral attack, such as is manifested by her present suit. Hochman v. Mortgage Finance Corporation, 289 Pa. 260, 137 A. 252; Nitti v. Public Service Railway Co. (N. J. Err. & App.) 139 A. 62; Spence v. Spence, 74 N. J. Eq. 786, 70 A. 990; In re Walsh's Estate, 80 N. J. Eq. 565, 569, 74 A. 563; McGarvey v. Young, 100 N. J. Eq. 174, 134 A. 744, affirmed (N. X Err. & A pp.) 137 A. 918; Barber's Chancery Practice, vol. 1, page 322; Kocher & Trier, N. J. Chancery Prac. & Proc. vol. 1, § 466.

In Barber's Chancery Practice, supra, it is said that, if a bill be dismissed after hearing, unless the decree of dismissal be without prejudice to the complainant's right to bring a new suit, the decree may be pleaded in bar to a new suit. In Kocher & Trier, supra, it is said:

"The dismissal of a bill in equity for failure of proofs has never been treated as similar in effect to a voluntary nonsuit at law, but, on the contrary, a decree dismissing a bill of complaint after a full hearing upon the merits has always been treated as an effectual bar to the complainant, and to all who claim under him, from bringing a new suit so long as such decree is unreversed."

See, also, Henninger v. Heald, 52 N. J. Eq. 431, 29 A. 190, affirmed 53 N. J. Eq. 694, 35 A. 1130.

In Spence v. Spence, supra, it was held that, in a suit for divorce a mensa et thoro on the ground of extreme cruelty, if the facts constituting the alleged cruelty are disproved, a decree dismissing the petition of complaint will operate, res judicata and be a bar to pleading or proving the same facts in any subsequent suit. In Hochman v. Mortgage Finance Corporation, supra, the court (289 Pa. 265, 137 A. at pages 253, 254) says:

"A party cannot escape the bar of the judgment against him by bringing a new suit on the same cause of action, but in a different form of action or proceeding, unless the relief sought in the second action was not, or could not have been, germane to the first proceeding. * * * The fact that a different measure of relief is asked by the plaintiffs in the latter suit does not deprive defendants of the protection of the prior proceedings and the decree in their favor. Green v. Bogue, 158 U. S. 478, 15 S. Ct. 975, 39 L. Ed. 1061."

Inasmuch as this court adjudicated in complainant's former suit that she had failed to substantiate the allegations of her petition, it was her duty to return to live with the defendant, for, as' stated in Taylor v. Taylor, supra:

"A wife must live with her husband, make his home hers, and give him her society and services, unless she can show reasons, valid in law, relieving her from her duty to him."

See, also, Pinkinson v. Pinkinson, 92 N. J. Eq. 669, 113 A. 143.

Instead of complying with her aforesaid duty, within one month after the entry of the decree in her former suit she commenced her present suit, and on March 9, 1927, appealed from such decree. Her appeal was dismissed May 24, 1927, on motion of her solicitors. Disregarding the decree of this court in her former suit, she persisted in reasserting her offensive allegations against the defendant. In paragraph 6 of her bill herein she says she testified in her previous suit that she was ready and willing and desirous of going back to live with her husband, "provided he would cease and refrain certain acts of marital and congenital cruelty towards her." In her reply to paragraph 8 of defendant's counterclaim she denies the allegations thereof, "except in so far as she refuses to cohabit with her husband until he would treat her as a respectable married, woman should be treated, and would live with her in a natural way; that your petitioner never refused to live with or cohabit with her husband, if he would treat her with respect and live with her in a natural way, and not perform unnatural acts with her, all of which are more fully and specifically set forth in the bill of complaint filed by her against her husband, for a divorce from bed and board." Her actions and conduct from the time she abandoned the defendant, as disclosed by the pleadings and proofs, clearly manifest that she was determined that she would not resume cohabitation with him. This court may and should consider the conduct of the complainant towards her husband since her abandonment of him, for the purpose of gauging the bona fides of her professed readiness and willingness to resume cohabitation with him, particularly in view of the apparent malignity with which she prosecuted her former suit and her present suit. Cavileer v. Cavileer, 94 N. J. Eq. 160, 166, 119 A. 101; Cook v. Cook, 11 N. J. Eq. 195, 201.

The defendant's answer to paragraph 3 of the complainant's petition in her divorce suit, in addition to denying the allegations thereof, says:

"He is ready and willing to take back the petitioner and cohabit with her as man and wife."

She did not avail...