Gutzwiller v. Gutzwiller

• Decision Date: 19 June 1950
• Docket Number: No. A--264,A--264
• Citation: 74 A.2d 325,8 N.J.Super. 254
• Parties: GUTZWILLER v. GUTZWILLER.
• Court: New Jersey Superior Court — Appellate Division

Page 254

8 N.J.Super. 254

74 A.2d 325

GUTZWILLER v. GUTZWILLER.

No. A--264.

Superior Court of New Jersey

Appellate Division.

Argued June 5, 1950.

Decided June 19, 1950.

Joseph J. Mutnick, Plainfield, attorney for and of counsel with plaintiff-respondent, argued the cause.

Norman J. Abrams, Plainfield, argued the cause for the defendant-appellant (Abrams & Stine, Plainfield, attorneys).

Before Judges McGEEHAN, COLIE and EASTWOOD.

The opinion of the court was delivered by

EASTWOOD, J.A.D.

Defendant, Evelyn Hublitz Gutzwiller, appeals from the judgment nisi entered against her by the Superior Court, Chancery Division, dissolving the marriage between her and the plaintiff on the ground of adultery.

The parties were married on February 12, 1941. Two children born of the marriage are in the custody of the defendant. Plaintiff relies upon the proof of one act of adultery committed by his wife with the corespondent, a medical doctor, on August 17, 1947.

Defendant was an employee in the offices of the corespondent and an associate with whom he shared offices. At approximately ten o'clock on the night in question, after having taken his wife to the hospital, the corespondent visited at the home of the parties. At about midnight, after plaintiff had served a few drinks, all three went out to a diner and returned to the Gutzwiller home for a 'night cap'. When the corespondent was leaving at about one o'clock, he remarked: 'I have no wife tonight. Why don't you come home with me?' Defendant replied: 'Why not?' Plaintiff offering no objection, the corespondent and defendant thereupon left the house together in corespondent's car and did not return. Mrs. Gutzwiller and the corespondent testified that during the evening plaintiff told his wife that the trouble with her was that she was under-sexed and it was too bad she didn't find herself a man and learn something. Plaintiff denied the foregoing testimony, stating that he took the suggestion that his wife go home with the corespondent as a joke; that, when she did not return, however, after a lapse of some twenty minutes, he became suspicious, drove over to the corespondent's home, a distance of nine miles, where he found the house in complete darkness and his car parked in the driveway; that, not being certain as to whether his wife was inside, or what was going on, at about 2:00 A.M., plaintiff telephoned a business associate of his, Ernest Busch to meet him; that they then drove to corespondent's home, where he parked his car and kept the house under surveillance until 6:00 A.M., during which time the house remained in total darkness. At about 6:00 A.M., plaintiff and the witness Busch saw a light go on in the corespondent's house and shortly thereafter the defendant and corespondent emerged from the house, got into corespondent's car and drove off to a diner. Plaintiff and Busch followed them, and at the diner, plaintiff introduced the corespondent to both Busch and a policeman for purposes of identification. Plaintiff thereupon proceeded home followed by defendant and corespondent in the latter's car. At the Gutzwiller home the corespondent and the defendant protested their innocence. Following the corespondent's departure, the defendant became hysterical and pleaded for the plaintiff's forgiveness, stating that in return she would thereafter devote herself faithfully to her husband and children. Plaintiff, on the basis of defendant's promises and assurances of her love and affection, and the propriety of her future conduct, condoned the alleged offense. Defendant continued in the employ of the corespondent and openly confessed her love and affection for the corespondent. On October 4, 1947 and again on October 11, 1947 she made unsuccessful attempts to commit suicide, leaving notes asserting her love and affection for the corespondent and that she could not go on without him. Plaintiff testified that three weeks after the alleged act of adultery on August 17, 1947, his wife arbitrarily refused to have further sexual relations with him, informing him that she could not do so because of her love for the corespondent. Mrs. Gutzwiller denied this testimony, stating that their sexual relationship continued as late as November 27, 1947. Plaintiff left his wife and children on December 2, 1947, because, as he testified, she had violated her promises of conjugal kindness after he had forgiven her act of adultery, and by reason of her refusal to have sexual relationship with him and her repeated insistence that she loved the corespondent. Mrs. Gutzwiller and the corespondent testified that by reason of their intoxicated conditions, they had no recollection of what happened from the time they left the Gutzwiller home that night until they awoke at 6:00 A.M. and found themselves occupying...