Howard v. Howard

• Decision Date: 19 February 1910
• Citation: 77 N.J.E. 186,78 A. 195
• Parties: HOWARD v. HOWARD.
• Court: New Jersey Court of Chancery

78 A. 195

77 N.J.E. 186

HOWARD

v. HOWARD.

Court of Chancery of New Jersey.

Feb. 19, 1910.

Suit by Edna Dorothea Howard against Walter Henry Howard for divorce. Denied.

Theodore D. Gottlieb, for petitioner.

WALKER, V. C. This is an ex parte divorce case for adultery. Marriage and residence are clearly proved. The master reports that in his opinion "all the material facts charged in the petition relative to the charge of adultery are true, and that a decree for divorce should he made for the cause of adultery." That the charge of adultery is proved to be true, because the defendant has confessed it, I may admit; but his confession, or rather confessions,' are insufficient in law to prove the commission of the offense, as will hereafter appear.

The proof of adultery lies in confessions of the defendant and his paramour. Of course, the confessions of the paramour are not evidence when made out of the presence of the defendant. Doughty v. Doughty, 32 N. J. Eq. 32; Berckmans v. Berckmans, 16 N. J. Eq. 122; Hurtzig v. Hurtzig, 44 N. J. Eq. 329, 337, 15 Atl. 537; Graham v. Graham, 50 N. J. Eq. 701, 25 Atl. 358. The confessions of the paramour, relied upon in this case were made in the absence of the defendant. She signed a confession which was written by the petitioner, and her signature was witnessed by a woman whom the petitioner called in for the purpose. This was after the defendant had left the petitioner; he having left before she discovered his infidelity.

As to the defendant's confessions of guilt: These were made to his wife and her sister. They do not appear to have been collusive; but, nevertheless, they are not such evidence as, under our law, will support a decree.

Chief Justice Beasley, sitting as master in Jones v. Jones, 17 N. J. Eq. 351, at page 352, said: "The approved rule of law appears to be that a divorce will not be granted when the admissions of the criminal party constitute the entire basis upon which to rest the conclusion of guilt. Such evidence, it is said, may convince to a moral certainty; but it does not fill the measure of legal proof. That such a standard for legal judgment could not safely be adopted is apparent, when we consider the ease with which the entire case could be similated by colluding parties. The precedents, therefore, wisely require something more than the naked declarations of the defendant."

Perhaps the leading case in this state on the question of confessions is that of Summerbell v. Summerbell, 37...