Pfender v. Pfender

• Decision Date: 17 June 1930
• Citation: 150 A. 832
• Parties: PFENDER v. PFENDER (two cases).
• Court: New Jersey Court of Chancery

150 A. 832

PFENDER

v. PFENDER (two cases).

Court of Chancery of New Jersey.

June 17, 1930.

Syllabus by the Court.

Extreme cruelty which will justify the separation of one spouse from the other is that degree of cruelty, either actually inflicted or reasonably feared, which endangers the life or health of the aggrieved party, or renders his or her life one of such extreme discomfort and wretchedness as to incapacitate him or her, physically or mentally, to discharge the marital duties.

Syllabus by the Court.

Where the separation is due to the infatuation of the offending party for a paramour, rather than the acts of cruelty charged in justification thereof, it is actual desertion.

Petition for divorce by Carl D. Pfender against Lillian E. Pfender, and suit by Lillian E. Pfender against Carl D. Pfender for maintenance. On motion for order for support, maintenance, and expense money. Matter referred to master for purpose of taking testimony respecting financial resources and ability to respond to order for support and maintenance.

Merrit Lane, of Newark, for complainant-defendant.

Lum, Tamblyn & Colyer and Ralph E. Lum, all of Newark, for petitioner-defendant.

BERRY, Vice Chancellor.

Previous proceedings between the parties to this suit are fully detailed in opinions of this court in Pfender v. Pfender, 144 A. 333, affirmed (N. J. Err. & App.) 144 A. 332, and 105 N. J. Eq. 247, 147 A. 911. In the final decree entered January 30, 1929, setting aside the decree nisi in the divorce action of Carl D. Pfender v. Lillian E. Pfender, it was provided that the bill for maintenance be retained for such further order or decree as this court might thereafter make, and that the application of the complainant for an order directing the payment to her of support and maintenance from the date of the decree nisi, and for costs, counsel fees, and expense money, be reserved for the further order of the court, and that the reserved matters might be brought on by either party upon five days* notice to the other. The present proceedings are in pursuance of that reservation.

The final decree setting aside the decree nisi was advised because of conscious deception of the court by the petitioner in the divorce action and because of marital misconduct subsequent to the entry of the decree nisi and before the expiration of the statutory period required to elapse before the entry of a final decree. In the opinion last above referred to (page 335 of 144 A.) I said:

"In Clickner v. Clickner, 95 N. J. Eq. 479, 123 A. 373, this court held that, where a suitor in equity has been guilty of false or misleading testimony and conduct in the presentation and hearing of his cause, his suit will be dismissed, irrespective of whether or not he might otherwise be entitled to relief. The rule of that case is plainly applicable here. This does not mean that the defendant's threat against the petitioner's life, and because of which the decree nisi was advised, was justified or in any sense excusable; it means only that the unconscionable conduct of a suitor in a matter in which he seeks relief will prompt a court of equity to remain passive."

Counsel for the defendant now refers to this statement,...