Macarthur v. Macarthur.

• Decision Date: 15 May 1944
• Docket Number: No. 223.,223.
• Citation: 37 A.2d 76
• Parties: MacARTHUR v. MacARTHUR.
• Court: New Jersey Supreme Court

37 A.2d 76

MacARTHUR

v.MacARTHUR.

No. 223.

Court of Errors and Appeals of New Jersey.

May 15, 1944.

Appeal from Court of Chancery.

Suit for a divorce by Henry Edward MacArthur against Hazel Florice MacArthur. From a decree nisi granting a divorce to the petitioner, the defendant appeals.

Affirmed.

The CHIEF JUSTICE and DONGES, HEHER, PERSKIE, and COLIE, Justices, and RAFFERTY, Judge, dissenting.

Victor H. Schleicher and Samuel Kalisch, Jr., both of Newark, for petitioner-respondents.

Sebastian Gaeta, of Wycoff, for defendant-appellant.

WELLS, Judge.

This is an appeal from a decree nisi granting a divorce to the husband from his wife on the ground of her extreme cruelty and awarding her the custody of the two children, Carolyn, six years of age, and Susan, three years old, and directing the husband to pay the wife a certain sum per week for the support and maintenance of the infant children and a counsel fee to the solicitors of the wife. The appeal is from that portion of the decree which awarded the divorce to the husband. The ground of the appeal is that the evidence did not warrant the court in finding that the wife was guilty of the charge of extreme cruelty.

The parties were married on June 22, 1935, and lived together until April, 1942, at which time the final separation took place. After this marriage the parties went to Flushing, New York, to live and got along there fairly well. In February or March of 1939, they moved to Bogota, New Jersey, and it was soon thereafter that serious marital troubles began between the parties resulting in the filing by the husband of a petition for divorce.

The alleged acts of extreme cruelty consisted of (1) physical abuse and (2) accusations of infidelity. As to the former, the husband testified that from the month of January to and including a part of the month of April of the year 1942 his wife on numerous occasions threatened his life and that on one particular occasion he was awakened to find his wife standing over him with a knife in her hand; that on other occasions she went after him with an ax and a poker. He also testified that his wife during this same period threw dishes, pictures and other missiles at him. These alleged acts of physical violence were not corroborated and were denied by the wife.

As to the accusations of infidelity, these were not only corroborated but were admitted by the wife on the witness stand, although in the answer filed by her she denied making them.

It appears from the husband's testimony that in the fall of 1939 he was employed by the Westinghouse Manufacturing Company as an electrical engineer and was engaged in war work at the Brooklyn Navy Yard and had informed his wife when he left home one morning that he thought he was going to work overtime that night and might not be home until very late; but that he arrived home between 5:30 and 6 p. m. and when he came in, his wife said, ‘What is the matter, did your date fall through?’ That was the first time she spoke like that. This was the beginning of charges and accusations which were almost continuous until the final separation in April, 1942. She accused him of running around and having sexual relations with other women. She said he wasn't working overtime when he said he was but was out with other women and at the same time she accused him of frequenting a house of prostitution in Bogota and of taking his own daughter with him. Sometime the latter part of 1939 she accused him of being the father of a child of a business associate's wife. Every time he went home he got the same thing-at the dinner table and everywhere.

On October 30, 1940, the husband, whose health had become very much impaired as a result of the constant accusations of infidelity made against him by his wife, consulted Dr. Beling, a practicing physician in Newark of forty years experience, specializing in nervous and mental diseases, and he told the doctor about his marital troubles and after visiting the doctor several times, the doctor asked him to bring his wife with him so he could talk to her. Finally, on February 6, 1942, he prevailed upon his wife to go with him to see the doctor. The doctor testified that at this interview the wife made accusations against her husband, the gist of which was that he wasn't true to her. The husband said that at this interview he told his wife in the presence of Dr. Beling that he couldn't stand these accusations, and the doctor told her that too, and her reply was that she didn't care what effect it had on her husband, that he should have thought about that before he did those things, referring to his sexual relations with other women. The wife subsequently went to see the doctor alone. She did not deny making these accusations and statements to the doctor. On the contrary when, on direct examination, she was asked to tell the court how she came to go to Dr. Beling, she replied, ‘I went to Dr. Beling because I thought I might be able to have my husband tell the doctor the truth,’ and in reply to the question as to what she meant by ‘truth’, she said: ‘That he was unfaithful to what I considered an abnormal degree, and that Dr. Beling might be able to help him see things differently.'

On March 28, 1942, after one of the many attacks the husband testified the wife made upon him, he went to the chief of police of Leonia with the intention of making a charge of assault and battery against his wife, but the chief dissuaded him from doing so and accompanied the husband to his home for the purpose of having a talk with the wife to see if he could straighten out matters so that he wouldn't be called into the case again. He made four calls all told upon the wife, but she continued to repeat the accusations about her husband consorting with other women. As a result of these conferences, the chief advised the husband to leave the home that the environment was not good for either husband, wife or the children. On the witness stand the wife unhesitatingly admitted making all the accusations, heretofore recited, to her husband and repeating the same to Dr. Beling, Chief of Police Small and to others. Her attitude was one of justification and her reasons were as follows: (1) That when her...