Heller v. Heller

• Decision Date: 27 September 1934
• Docket Number: No. 35.,35.
• Parties: HELLER v. HELLER.
• Court: New Jersey Supreme Court

174 A. 573

HELLER

v. HELLER.

No. 35.

Court of Errors and Appeals of New Jersey.

Sept. 27, 1934.

Syllabus by the Court.

1. Impotence, as a ground for nullity of marriage, is a want of power for copulation, and may be curable, incurable, accidental, or temporary.

2. To justify a decree of annulment of marriage on the ground of impotency under section 1 of the statute, 2 Comp. St. 1910, p. 2021, amended by chapter 311, P. L. 1931 (N. J. St. Annual 1931, § 62—1), accused spouse must be shown to be incurably impotent, and the burden of proof rests with the one making the charge.

3. An annulment of marriage may not be granted upon the uncorroborated testimony or admission of a party to the suit on any element in the proofs necessary to sustain the decree.

4. On a showing of continued cohabitation, the wife meanwhile being apt and remaining a virgin, the husband will be presumed to be impotent to the degree required by the statute, and the burden will be upon him to overcome the presumption by proof that he is not at fault; but cohabitation over a period of two months is wholly inadequate to give rise to such a presumption.

Appeal from Court of Chancery.

Suit by Fannie Heller against Max Heller. From an adverse decree, defendant appeals.

Decree reversed, and cause remanded, with directions.

Sholem Lipis, of Newark, for appellant.

Irving L. Werksman, of Passaic, for respondent.

CASE, Justice.

The petitioner, Fannie Heller, sued for the annulment of her marriage upon the ground that her husband, the defendant, Max Heller, was, at the time of marriage, physically and incurably impotent. The advisory master by whom the matter was heard found for the petitioner, and a decree nisi was granted accordingly. Defendant appeals.

The marriage was on August 28, 1932. The parties separated November 2, 1932. Cohabitation was therefore limited to sixty-six days, and the opportunity for coition was still further reduced by three menstrual periods of the petitioner occurring during that time. The proceeding for annulment was begun November 10, 1932. The defense was that the defendant is fully competent to consummate the marriage, and that the failure of consummation was due to nervous resistance and assertions of pain by the petitioner.

The defendant is not without virile qualities. It is conceded that he regularly made sexual response to his wife's body by an erection and an effort at intercourse, but that discharge took place before penetration was accomplished. The reason for the premature emission is ascribed by the wife to the husband's inability, and by the husband to the exercise of restraint occasioned by the wife's protestations. One of the medical witnesses produced by the petitioner testified that the probability of a cure attends such a condition as the petitioner imputes to the defendant. He also testified that the petitioner's vaginal opening was extremely resistant. There is further uncontradicted medical testimony that the defendant is capable of emitting semen containing live mobile spermatozoa.

The facts of marriage and of absence of coition are established. But the rule is that neither a divorce nor an annulment may be granted upon the uncorroborated testimony or admission of a party to the suit on any element in the proofs necessary to sustain the decree. Hague v. Hague, 85 N. J. Eq. 537, 96 A. 579; Bolmer v. Edsall, 90 N. J. Eq. 299, 106 A. 646. We think, therefore, that the petitioner falls short in her essential proofs, for her recital of the reason for failure of coition stands alone, uncorroborated; and there is no other proof of impotence unless, indeed, it be the very fact of nonconsummation, of which we shall presently speak. However, even if we assume that failure of coition was due to the husband's inability, during the period of cohabitation, to consummate, our opinion is that the petitioner's proofs are nevertheless deficient.

The Divorce Act, 2 Comp. St. 1910, p. 2021, upon which the suit is based, provides in section 1 (amended chapter 311, P. L. 1931 [N. J. St. Annual 1931, § 62—1]) that "decrees of nullity of marriage may be rendered in all cases when *. * * the parties, or either of them was at the time of marriage physically and incurably impotent; provided, the party making the application was ignorant of such impotency or incapability at the time of the marriage, or has not subsequently ratified the marriage." The question of knowledge and of ratification are not raised. Conspicuous in the statute is the word "incurably," and not only therein but, in one phase or another, in the jurisprudence relating to the subject.

Impotence is defined as want of power for copulation, Kirschbaum v. Kirschbaum, 92 N. J. Eq. 7, 13, 111 A. 697, and may be curable, incurable, accidental, or temporary, 31 C. J. 259; Bouv. Law Diet. (Rawles 3d Rev.) 1514. If all of the proofs submitted by the petitioner, including the uncorroborated portions of her own story, were to be accepted as true, they would sustain the proposition that the defendant was, as to her and during the period of cohabitation, impotent, but not that the impotency is incurable. There is no proof of incurability, and there are no proofs from which incurability may be presumed. It is quite consistent with the proofs that the defect should be either temporary or curable. In Tompkins v. Tompkins, 92 N. J. Eq. 113, 111 A. 599, 600, Vice Chancellor Backes, citing many decisions by the English courts, applied what is called the doctrine of triennial cohabitation, the essence of which is that "If the wife be a virgin and apt after three years' cohabitation, the husband will be presumed to be impotent, and the burden will be upon him to overcome the presumption by proof that he is not at fault." We understand that the rule there stated was intended to be comprehensive of impotency in its full statutory sense as a ground for annulment, namely, incurable impotency, which is the only type of the disability within...