Rogers v. Rogers

• Decision Date: 08 August 1904
• Citation: 67 N.J.E. 534,58 A. 822
• Parties: ROGERS v. ROGERS.
• Court: New Jersey Court of Chancery

58 A. 822

67 N.J.E. 534

ROGERS

v. ROGERS.

Court of Chancery of New Jersey.

Aug. 8, 1904.

Suit by Benjamin H. Rogers against Zaidee W. Rogers. Petition dismissed.

Francis Scott, for petitioner.

Addison Ely, for defendant.

GARRISON, V. C. This is a petition filed by the husband against his wife charging her with adultery, and praying for an absolute divorce.

The parties to this suit were married in 1867.

The petitioner is a physician, practicing at Paterson, N. J.

They seem to have lived contentedly together until the summer of 1903.

In the sumner of 1902 the brother of the petitioner, at whose cottage at Ocean Grove the defendant lodged for a time, informed the petitioner of certain conduct of the defendant with William Hobson, and for this the husband rebuked her, but they continued to live together as before, and the husband continued to employ Hobson at his office in Paterson.

The office was in the house where the petitioner and his wife resided.

William Hobson was a young man of 18, who for some time was in the employ of the petitioner, assisting him in his laboratory.

In the month of June, 1903, a colored boy in the employ of the petitioner told the petitioner that he had seen Hobson and the defendant embracing and kissing each other in the house at Paterson.

The other witnesses subsequently produced at the trial related their stories to him, and the petitioner himself had been the witness of suspicious occurrences.

From this time on the petitioner began to accuse the defendant of adultery with Hobson.

He consulted counsel, and in the presence of such counsel and of the mother of the defendant and of his brother he accused her of infidelity.

He and his brother testify that at that time she confessed that she had been guilty of adultery upon one occasion with Hobson.

The mother of the defendant testifies that the defendant stood mute, and afterwards that she denied that she had been guilty.

The counsel of the petitioner, who was present, testifies that the wife did not deny, but that she said that married people often made mistakes and afterwards came together again.

The defendant denies that she made any confession.

Apart from the alleged oral confession of the defendant, the evidence adduced by the petitioner was of three kinds: testimony as to the conduct of the defendant and Hobson while together, letters of the defendant to the petitioner, and letters of the defendant to Hobson.

Hobson was sworn as a witness on behalf of the petitioner, but was not questioned as to his relations with the defendant.

The testimony of the conduct of the defendant and Hobson while together is meager, and is of little, if any, value, in aiding to arrive at the truth.

I think the defendant undoubtedly had conceived an affection for Hobson, and that she was, as the witnesses phrase it in their testimony, indiscreet in her conduct with him; but the testimony of the witnesses as to the actions of the defendant and Hobson when together falls far short of such convincing or persuasive evidence as is necessary as a basis for a finding that the defendant was guilty of adultery.

There are many sentences in the letters written by the defendant to the petitioner which are inconsistent with her innocence; and there are some sentences in her letters to Hobson which, by inference, imply a guilty connection between her and him.

Were it necessary to decide whether a finding of adultery could be based upon the evidence in this suit, embarrassment would be found in the principle enunciated in Kloman v. Kloman, 62 N. J. Eq. 153, 49 Atl. 810 (Reed, V. C), that the confession of the wife in the oral statement and in the letters is not sufficient in this state to base a decree or finding upon.

And if in the suit at bar it is attempted to find corroboration to aid the confession, the corroborating evidence is very slight.

However, I do not find it necessary to decide the fact of the defendant's guilt.

The husband began his accusations of adultery against his wife about June 25, 1903, "after," as he says, "I became convinced of a knowledge of her adultery."

From that time until July 1, 1903, they continued to occupy the same bed.

He admits that they did occupy the same bed some of the time, but insists that he was ill, and that they did not have sexual intercourse.

She asserts that they occupied the same bed all of that time, and that they did have sexual intercourse.

There is the same reason for inferring that sexual intercourse was attendant upon the continuation of connubial relations in this case as there was in the case of Todd v. Todd (N. J. Ch.) 37 Atl. 766 (Grey, V. C.).

The constant theme of conversation between them during this time was the accusation that he made against her.

Hobson continued to be received by the husband, and was a party to many of the talks about the matter.

I find that at that time it was the general understanding that the wife should go away for two years, that the husband should supply her with money, and that at the end of that time he should procure a divorce for desertion.

I believe that he expressed this as his wish, and that she agreed to comply with it, and that her hope was that she could effect a reconciliation with him and resume their married life together.

About the 1st of July she left for the country.

After she had been away a month, and about July 31, 1903, he requested her to return.

His object in having her return to the state of New Jersey was to enable him to have served upon her the citation in this suit, he having caused the suit to be brought in July, 1903.

The charge in the petition is the commission of adultery with Hobson at Ocean Grove and at Paterson.

She...