H. v. H., A--535

• Decision Date: 17 December 1959
• Docket Number: No. A--535,A--535
• Citation: 157 A.2d 721,78 A.L.R.2d 799,59 N.J.Super. 227
• Parties: , 78 A.L.R.2d 799 H., Plaintiff-Appellant, v. H., Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 227

59 N.J.Super. 227

157 A.2d 721, 78 A.L.R.2d 799

H., Plaintiff-Appellant, v. H., Defendant-Respondent.

No. A--535.

Superior Court of New Jersey

Appellate Division.

Argued Nov. 2, 1959.

Decided Dec. 17, 1959.

Paul Bartel, Fair Lawn, for plaintiff-appellant (Bartel and Sartoga, Fair Lawn, attorneys).

No appearance for defendant-respondent.

Before Judges CONFORD, FREUND and HANEMAN.

The opinion of the court was delivered by

CONFORD, J.A.D.

This is an action for divorce by the plaintiff-husband for extreme cruelty of the defendant-wife consisting of her maintenance of an active homosexual relationship with another woman, one E.F. Another count in the complaint charging the same acts to constitute adultery was withdrawn at the trial. The case was uncontested.

Defendant was subpoenaed by plaintiff, and appeared, attended by counsel, who offered on her behalf objections to any testimony sought to be elicited from her on the ground that it would tend to incriminate her. The objection was overruled with respect to certain matters hereinafter referred to.

At the conclusion of plaintiff's case, no opposition proofs being tendered, the court reserved decision and later filed a written opinion expressing conclusions adverse to the asserted cause of action. It concluded that: 'Nothing has been shown to indicate any lewd, lascivious or indecent act engaged in by either defendant or E.F. * * *'; that plaintiff's testimony of alleged acts of cruelty 'is unsupported and is not corroborated'; and that the proofs failed to establish that defendant's conduct 'had a deleterious effect' upon plaintiff's health or safety or that 'his life or health would be endangered if he continued the marital relationship.' The case was regarded as 'factual,' turning 'solely on the question of credibility of the plaintiff, his witnesses and exhibits.'

Plaintiff's testimony was to the following effect. He is 29, the defendant 35. They were married in 1949 and have two children. He is a truck driver. They had owned a home in L. but moved to P. in October 1955, where they resided together until plaintiff left the defendant, for reasons to be stated, in June 1956. At L. defendant had 'a lot of relations with teenagers' which disturbed plaintiff because his wife was so much older than they. Defendant worked as an elevator operator in P. She told him occasionally that women she described as 'Lesies' who got in her car would 'try to make out with her.' He told her it was not 'right for her to do these things, to stay away from there women. They weren't normal * * *.' She paid no attention to him, continuing to associate with them. 'She started bringing them home with her.' One night very late she brought home two or three of them. He identified them as 'Lesies' by their masculine attire. He protested to defendant vehemently, but continued to live with her, hoping she would discontinue these associations. His work involved absences from home for days at a time. On several homecomings he found other women there who by their attire looked like Lesbians. For a period of time defendant had two young girls living there with her. She never answered his questions as to their origins but explained they watched the children for her while she was working or out of an evening. They had 'arguments on this many times.'

In June 1956 plaintiff came home one evening unexpectedly early to find the apartment dark. When he turned the lights on he found the defendant in bed with a young woman by the name of E.F. Asked on direct examination as to his reaction to this occurrence, he testified: 'Well, I just don't like the word 'queers.' I just don't like Lesbians of any form. * * * When I seen that they were together I knew right away who she was and it just bothered me very much. I got mad, sick and nervous and everything all at once. * * * Well, right then and there I knew I just couldn't live with her any more. * * * After her being like that for so long, just changed my opinion of her as a woman.' He moved out of the apartment at once and has never lived with defendant since.

Later, Miss F. moved into the P. apartment (defendant testified this was in February 1957 and was arranged in order to economize after plaintiff's leaving) and lived there with defendant. Subsequently (October 1957, according to defendant) they moved to M., N.Y., where they had an apartment together, living there with the children of the parties. Defendant admitted to plaintiff at a domestic relations court hearing that she and Miss F. occupied the same bed. At the hearing herein she said they occupied the same bedroom. They were still living together at the time of the hearing.

In June 1958 plaintiff regained the custody of his children and they live with his parents. He resides at the home of his brother in F.

After leaving the P. apartment plaintiff came there occasionally to visit his children and to get some of his clothing. On one such visit, in going through a picture album, he discovered a number of photographs of the defendant in the company of Miss F. These were identified by defendant and admitted in evidence, after the court overruled objections offered on her behalf as a witness, based on the capacity of the answers to the questions to incriminate her. They were described as having been taken in 1956 and 1957. In most of them Miss F. appears dressed in mannish attire and with hair cut short and brushed back in the manner of a boy. The defendant is in normal feminine dress. Some of the poses show the couple embracing in the conventional manner of heterosexual sweethearts. One of the pictures shows them as one of a group of four couples, all women, in dancing posture on what seems to be a dancefloor, one partner in each couple being dressed in masculine attire.

On the occasion of another visit by plaintiff to his children (in defendant's absence) he found a box in her bedroom in which there was a packet of some 39 letters or notes inside an envelope. The outside of the envelope bore the inscription 'To Fi' (Miss F's nickname) in handwriting which plaintiff identified as that of his wife. These communications were excluded from evidence by the trial judge, without regard of plaintiff's undertaking to prove that they were in Miss F's handwriting, on the ground that they were not binding on the defendant. They were handed up to this court for examination on the argument. Some of the letters were written in script, others in print. They were almost invariably signed, 'All my love to you always, F,' and followed by a row of x's symbolizing osculation. Some are addressed to 'B' (defendant's nickname), most to 'Honey,' 'Baby,' 'Baby Doll,' 'Babe,' and comparably common forms of endearment between romantic intimates. Most of the notes bear dates running from about the middle of February 1957 to the middle of May 1957. They appear to have been left by 'Fi' for 'B' to see when she returned home from work, the former apparently leaving for work after the other. Apart from an occasional mundane reference to matters of housekeeping or attention to the children, these notes are otherwise a repetitive cacophony of amorous attachment in most explicit terms. Only because of the circumstantial nature of the remainder of plaintiff's case and the trial court's dissatisfaction with its probative impact do we find it necessary to set out some of the more illuminating excerpts. (The court here quoted from a number of these letters.)

Plaintiff also testified that Miss F. had printed on the rear bumper of her car in red fluorescent tape the names 'Fi' and 'B.' After finding the packet of letters plaintiff confronted his wife with them, and she responded: 'So what. You can't prove it.'

In its opinion the trial court made a point of the fact that the complaint specifies the date of commencement of the charged acts of extreme cruelty as being February 19, 1957, whereas the specific incident which precipitated the separation of the parties took place in June 1956, thereby assertedly justifying the inference that plaintiff left defendant 'on his own volition' before the acts of cruelty commenced. However, the testimony is cogently persuasive that the incident of June 1956 climaxed a previous course of suspicious activities by defendant, thereby inducing the separation, and we consequently granted plaintiff's request at the oral argument to amend the complaint so as to charge that date and incident as the commencement of the course of extreme eruelty complained of, thus conforming the allegations with the proofs. R.R. 4:15--2.

We address our attention to the appellant's contention that the trial court was in error in excluding from evidence the letters aforementioned on the ground that having been written by another they cannot be binding on defendant. It has often been held in this State that letters written to a philandering spouse by his paramour, retained by the spouse and found in his possession, may, taken together with the surrounding circumstances and other conduct of the possessor, be treated as an implied admission of their contents, or at least constitute some corroboration of the conduct complained of. Stickle v. Stickle, 48 N.J.Eq. 336, 344, 22 A. 60 (Ch.1891); Cartan v. Cartan, 93 N.J.Eq. 175, 181, 115 A. 353 (E. & A.1921); Dwyer v. Dwyer, 133 N.J.Eq. 272, 274, 31 A.2d 812 (E. & A.1943); Friedman v. Friedman, 37 N.J.Super. 52, 61, 116 A.2d 793 (App.Div.1955), certification denied 20 N.J. 135, 118 A.2d 559 (1955). See the treatment of the counter part of this principle in criminal cases. State v. MacFarland, 83 N.J.L. 474, 83 A. 993 (E. & A.1912); cf. State v. Martinek, 12 N.J.Super. 320, 79 A.2d 697 (App.Div.1951). See also 4 Wigmore on Evidence (3d ed. 1940), § 1073, pp. 90--95. While possession of such letters is not of itself sufficient to raise an admission, it being required that the totality of the circumstances justifies an inference of acquiescence, in the truth...