Sachse v. Sachse, 17.

• Decision Date: 20 October 1930
• Docket Number: No. 17.,17.
• Citation: 151 A. 744
• Parties: SACHSE v. SACHSE.
• Court: New Jersey Supreme Court

151 A. 744

SACHSE

v. SACHSE.

No. 17.

Court of Errors and Appeals of New Jersey.

Oct. 20, 1930.

Syllabus by the Court.

It is impossible to define, with accuracy, the exact meaning of the term "extreme cruelty" as used in the statute, which provides for an absolute divorce on that ground, but this court, in Doty v. Doty, 92 N. J. Eq. 660, 114 A. 546, has approved of the rule as stated by Vice Chancellor Van Fleet in Black v. Black, 30 N. J. Eq. at page 221, wherein he said: "To justify a divorce a mensa et thoro, actual physical violence need not be proved, but such conduct, by the husband, must be shown as will justify the court in believing that, if he is allowed to retain his power over his wife and she is compelled to remain subject to him, her life or her health will be endangered, or that he will render her life one of such extreme discomfort and wretchedness as to incapacitate her to discharge the duties of a wife. Close v. Close, 10 C. E. Green [25 N. J. Eq.] 529; English v. English, 12 C. E. Green [27 N. J. Eq.] 585."

Syllabus by the Court.

The complaining party will not be granted a divorce where the cruel conduct relied on is provoked and brought on by the petitioner, unless the conduct complained of is excessive and out of proportion to the provocation.

Syllabus by the Court,

Incompatibility of temper and the ordinary misunderstandings, which are more or less characteristic of the marriage relations in many cases, have not been made grounds for divorce in this state, and those who are married must bear the real or fancied burdens they have assumed, unless the conduct of one entitles the other, that other being without fault, to a severance of the relation for one or other of the statutory causes.

Appeal from Court of Chancery.

Suit by Alice Warren Sachse against Albert Frederick Sachse for divorce. Decree for petitioner, and defendant appeals.

Reversed, and petition dismissed.

Cole & Cole, of Atlantic City, for appellant.

John C. Reed, of Atlantic City (Emerson L. Richards, of Atlantic City, of counsel), for respondent.

HETFIELD, J.

The appellant appeals from a decree of the Court of Chancery granting the respondent an absolute divorce on the ground of extreme cruelty, under P. L. 1923, p. 494. The parties were married January 21, 1899, and thereafter lived in Philadelphia until 1909, when they came to Ventnor, Atlantic county, this state, and resided at No. 23 South Weymouth avenue, until February 25, 1926, at which time they separated. She continued to live at the home with their daughter, Nellie, who was then 19 years of age, and he resided with their son, Julius, 21 years of age, in Philadelphia.

The petition in the present case was filed February 23, 1926, and alleges a progressive treatment of tormenting, humiliating, assaulting, and abuse by the defendant against the petitioner, failure to provide food, clothing, and other necessities, threats of bodily harm, a physical assault on July 10, 1925, abuse of marital relations, accusations of infidelity, alienation of the son's affections, and cruelty towards the daughter. With one exception, the petition is lacking in specific instances, and it is rather difficult to take up the proof or disproof of any one allegation.

The petitioner had been engaged, since January 3, 1925, as an announcer and accompanist in the radio station WGP, in Atlantic City, and received a salary of $3,000 per annum, which position occupied considerable of her time, especially during the night. The daughter, Nellie, as a rule accompanied her mother to the studio, and remained until she had completed her duties, and on many occasions they returned home at late hours, to which the defendant objected, claiming that his reason for so doing was that the petitioner had stated that liquor was served where she and the daughter dined. The petitioner testified that on Mother's Day, May 10, 1925, while both parties, together with their two children, were eating dinner, the defendant, speaking to his son, Julius, said: "It is too bad that you haven't a mother that you can be proud of. It is a shame that your mother can't compare with your friend's mother." She then stated: "I commenced to cry, and he, 'Ha, ha, ha,' laughed, and threw my plate, with the chicken neck and dob of gravy on it to me, and I got up and left," The petitioner and her daughter from that time on refused to eat with the father and son at the table, but insisted on having their meals brought by the servant, Trudy, either to their bedroom or in the sun parlor. The petitioner is not supported by any of the witnesses in respect to this event in its entirety. The testimony of the daughter, Nellie, who sympathized with the mother's cause, corroborated her as to the statement alleged to have been made by the defendant, but not as to his throwing the plate. The defendant and his son, Julius, who seems to favor his father, deny both the statement and the assault.

The only other specific instance of physical violence, testified to by the petitioner, that occurred within the time recognized by the statute, happened on the 10th day of July, 1925, when she alleged she was about to take some lamb stew from the kitchen to the daughter, Nellie, who she claimed was ill, and stated that defendant grabbed her hand, wrenched her arm, tore the ligaments away from her finger, and scratched her with the fork, and that her hand is permanently injured, preventing her from practicing at her music more than a few minutes at a time. She admits that, after the fork had been taken away by the defendant, she obtained a spoon and struck him with it. The fork was produced in court and admitted in evidence, and appeared to be much bent and out of shape. Both the son and daughter testify that they did not enter the kitchen until they heard the mother make an outcry, and, when they did, she was striking the father with a spoon. The son also testifies that the mother was playing the piano in the evening of the day this altercation took place. The servant, Trudy, testified that, when she was about to serve the dinner in the dining room, the petitioner, who had been out attending some social affair with her daughter, came into the kitchen, and said that she and her daughter were going right out again and wanted something to eat. Taking the fork from Trudy's hand, she started to place some of the lamb stew on a plate. The defendant desired to have the meal served on the dining room table, and grabbed the fork from the petitioner's hand, taking hold of the prongs. She stated that there was no wrestling, and that the defendant...