Carey v. Carey, A--163
| Decision Date | 02 June 1955 |
| Docket Number | No. A--163,A--163 |
| Citation | 36 N.J.Super. 23,114 A.2d 728 |
| Parties | Gertrude CAREY, Plaintiff-Appellant, v. Francis Joseph CAREY, Defendant-Respondent. . Appellate Division |
| Court | New Jersey Superior Court — Appellate Division |
Leslie H. Cohen, Newark, argued the cause for the plaintiff-appellant (Joseph A. Fuerstman, Newark, on the brief).
Bertram Polow, Morristown, argued the cause for the defendant-respondent (Edward F. Broderick, Morristown, attorney).
Before Judges GOLDMANN, FREUND and CONFORD.
The opinion of the court was delivered by
FREUND, J.A.D.
This is an appeal by the plaintiff-wife from a judgment dismissing her suit for separate maintenance based on extreme cruelty.
The plaintiff and the defendant were married on May 20, 1930. They had one child, a daughter, now married and living in Texas. They cohabited with each other until about October 26, 1949 when they separated. In November 1949 the plaintiff instituted an action for separate maintenance, but it was abandoned in July 1950 when they became reconciled and resumed cohabitation. Since April 1952 the parties have not lived together as husband and wife, although until July of that year they remained in the same household. At that time the plaintiff left their home and accepted employment as a housekeeper earning $225 a month plus maintenance. She is still so employed and has continued to live separate and apart from her husband.
The amended complaint sets forth three causes of action: the first, for extreme cruelty; the second seeks the reasonable rental value of the premises owned by the parties as tenants by the entirety; the third, a division of household furniture and effects. Prior to trial, the third cause of action was settled; the second is totally ignored, the briefs arguing only the extreme cruelty charge.
The complaint charges numerous acts of extreme cruelty; that the defendant in 1949 or 1950 threatened the plaintiff with a gun, that he has an 'awful temper' and has called her vile names. She testified that in 1947 or 1948 she had an operation for a split disc, following which she was confined to her bed at home and required to wear a back brace; that, against her will, her husband removed the brace and forced her to have sexual relations with him. She also testified that he struck her a few times and knocked her down, and that in March 1952 he accused her of having had sexual intercourse with another man before their marriage in 1930. She alleges that as a result of these acts and charges she became nervous and lost weight, and was forced to separate herself from her husband.
The only other testimony on behalf of the plaintiff was that of her sister, Hazel Kohler. It was confined to a general statement as to the plaintiff's health, that while living with her husband she was nervous, lost weight and seemed unhappy; it in no wise corroborated any acts of extreme cruelty.
The defendant categorically denied all the plaintiff's charges of cruelty and testified that he still loved his wife and wanted her home with him. Specifically, he denied threatening her with a gun, but explained he owned one in connection with his employment as a railway mail clerk. He denied his wife's charges of name-calling or any physical assaults upon her, or that he ever made excessive sexual demands of her or had accused her of premarital sexual intercourse.
At the conclusion of the hearing, the trial court rendered an oral opinion reviewing the facts and then dismissed the complaint. Later, a written opinion was filed, in which the court concluded 'that the plaintiff * * * has failed to sustain the burden of proof' or 'to have furnished any degree of corroboration regarding the acts complained of. * * *'
It is fundamental that the plaintiff has the burden of proving the allegations of her complaint and all uncertainties of fact should be resolved against her. Gordon v. Gordon, 89 N.J.Eq. 535, 105 A. 242 (E. & A.1918); Sheeran v. Sheeran, 115 N.J.Eq. 75, 169 A. 871 (E. & A.1934). Here, the wife separated herself from her husband and seeks separate maintenance. Hence, she must prove that her husband's conduct was such extreme cruelty as would allow her to institute an action for divorce from bed and board. Zehrer v. Zehrer, 5 N.J. 53, 73 A.2d 911 (1950).
The law has been repeatedly stated that--
"To justify a divorce A mensa et thoro, actual physical violence need not be proved, but 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 will be endangered, or that he will render her life one of such extreme discomfort and wretchedness as to incapacitate her to discharge the duties of a wife." Fallon v. Fallon, 111 N.J.Eq. 512, 162 A. 406, 408 (E. & A.1932).
Carney v. Carney, 178 A. 210, 13 N.J.Misc. 125 (Ch.1934), affirmed 117 N.J.Eq. 559, 176 A. 165 (E. & A.1934); Zehrer v. Zehrer, supra; Welch v. Welch, 34 N.J.Super. 197, 111 A.2d 793 (Ch.1955).
While it is true that in a separate maintenance suit corroboration of the plaintiff's testimony is...
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