Capozzoli v. Capozzoli.

• Decision Date: 14 March 1949
• Docket Number: No. A-212.,A-212.
• Citation: 64 A.2d 440
• Parties: CAPOZZOLI v. CAPOZZOLI.
• Court: New Jersey Supreme Court

64 A.2d 440

CAPOZZOLI

v.CAPOZZOLI.

No. A-212.

Supreme Court of New Jersey.

March 14, 1949.

Appeal from former Court of Chancery.

Suit by Mary Capozzoli against Vincent Capozzoli for divorce. Decree for defendant and petitioner appeals.

Affirmed.

Nicholas A. Ciufi, of Newark, (David Weinick, of Newark, on the brief), for appellant.

Eugene A. Liotta, of Elizabeth, for respondent.

WACHENFELD, Justice.

The decision here rests primarily upon the credence to be given to the testimony of the wife and husband as their respective charges and denials of domestic misconduct are paraded for judicial determination on the wife's petition for a divorce on the ground of extreme cruelty.

The court below doubted the veracity of the wife's story and pointedly disposed of it by saying:

‘Having observed the wife during the course of her testimony and having heard and reread the evidence, I have come to the conclusion that her testimony is highly exaggerated and reflects the animus, lack of regard and absence of love and respect for her husband which she admits was present almost from the inception of their marriage and is the result of what I conceived to be almost a rabid effort and determination to rid herself of the defendant.’

And again: ‘I am satisfied that the allegations of the complaint and the testimony of the plaintiff reflects fancied grievances testified by her in an exaggerated manner. I attached very little credence to any statement made by her as to a substantive allegation of the complaint * * *’

The husband's version touched a more responsive chord and was somewhat kindly catalogued as follows: ‘In summing up and evaluating the testimony of the witnesses I was greatly impressed with the testimony and appearance of the defendant himself. He appeared to the court as being an industrious foreigner, perhaps not too highly educated but yet not illiterate, whose primary interest in life was to keep his home together, educate his children and maintain his family in a respectable manner in the small community in which they lived in Berkeley Heights, New Jersey.’

The inevitable result of these conclusions was the denial of the divorce prayed for, from which decision the wife prosecutes this appeal.

The parties were married in 1926, at which time the appellant was sixteen years of age and the respondent twenty-six. They have two children, a daughter twenty and a son eighteen years of age. They lived together until February 1947, when the wife separated from her husband as a result of an incident which will be referred to more fully hereafter.

The principal complaint is the alleged unreasonable demands for sexual intercourse without regard to the wife's physical condition, which continued, she asserts, without abatement or variation during the entire span of twenty years of their married life and until separation. She also, in a supplemental way, charged her husband with assaults, name-calling and excessive drinking.

As to the excessive and constant sex demands, suffice it to say that in addition to the emphatic denial of the husband, a lack of corroboration and the adverse conclusions of the Advisory Master below, the narrative submitted is reflected unfavorably when considered with the admitted fact that the parties continued to live together and cohabit until the time of the final breach and separation.

As to the assaults, one occurred in 1939, when the appellant says the respondent struck her, and the other took place eight years later at the time of the parting as hereinafter mentioned. The name-calling was infrequent and reciprocal. The proof as to excessive drinking was lacking.

As to what occurred in February 1947 might best be left to the appellant's own words: ‘He got hold of me and pushed me into the bedroom and punched the back of my head and pushed me against the door. He pulled me on the bed and my son came and separated us.’

There is some corroboration given by both children but such an isolated incident is not sufficient to constitute extreme cruelty justifying the desertion by the wife.

The question of credibility is pre-eminently one for the Advisory Master to decide in cases of this kind. Grewe v. Grewe, Err. & App.1946,138 N.J.Eq. 296, 47 A.2d 840. On appeals from decrees in the old Court of Chancery great weight is given to the finding upon questions of fact made by the court below because it hears ...