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Daniel v. Daniel

New Jersey Superior Court, Appellate Division


Decided: March 23, 1949.

IVA DAVIS DANIEL, PLAINTIFF-APPELLANT,
v.
JOHN DANIEL, DEFENDANT-RESPONDENT

On appeal from Superior Court, Chancery Division.

McGeehan, Donges and Colie. The opinion of the court was delivered by Colie, J.A.D.

Colie

[2 NJSuper Page 83] This appeal is from a judgment dismissing the petition of Iva Davis Daniel for a divorce upon

[2 NJSuper Page 84]

the ground of extreme cruelty. The parties were married in 1934 and have two children, both boys, thirteen and eight years old at the time of the hearing. The petition alleged that the defendant "beginning in or about the early part of the year 1935, and continuing until April 6, 1947, used vile and abusive language toward petitioner and threatened her with bodily injury, occasionally struck her with his fist, and his hostility toward her culminated in a physical assault upon her on April 6, 1947, when he struck her and knocked her to the floor." The plaintiff testified to being struck by the defendant on three specific occasions in 1935, 1939 and 1947 and on numerous others unspecified. The defendant denied ever striking her. As to the incident on April 6, 1947 her version is that words arose between them about a gift of jewelry from him to her, that the discussion became heated, that he grimaced at her, twisted her nose and that she retaliated by slapping his face whereupon he knocked her down. The defendant denied the striking and said that in a scuffle she fell striking her jaw against the table. The plaintiff's version is to some extent corroborated by the testimony of the older child.

The question narrows down to one of credibility. Are the plaintiff and her son to be believed or is the defendant to be believed. Credibility is a question which the trial court is in a better position to determine than a reviewing court because it has the advantage of hearing the witnesses and observing their demeanor. We are reluctant, for this reason, to disturb facts found by the lower court where, as here, the testimony is in sharp conflict.

The judgment is affirmed.

19490323


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