McGeehan, Colie and Eastwood. The opinion of the court was delivered by Eastwood, J.A.D.
Plaintiff, Gladys Naomi Lehmann, instituted an action for separate maintenance in the former Court of Chancery against the defendant, filing her bill of complaint on August 6, 1948, wherein she alleged that defendant's acts of cruelty constituted a constructive abandonment of plaintiff. Defendant, in his answer, denied plaintiff's allegations and in a counterclaim prayed for a divorce upon the grounds of extreme cruelty. Plaintiff's answer and amended answer to defendant's counterclaim denied his allegations and set up a defense that the alleged conduct of which defendant complained, was the result of "an anxiety psychoneurosis."
At the conclusion of the hearings, the Chancery Division decided that plaintiff had sustained her asserted grounds for separate maintenance and thereupon directed that judgment be entered for plaintiff; the judgment reciting that it appearing that the dwelling house owned by the parties as tenants by the entirety "will continue to be occupied by the plaintiff and her daughter," defendant shall make the following payments: monthly alimony of $350 for Mrs. Lehmann and
daughter, a sum equal to the monthly payment of principal and interest on two mortgages encumbering their dwelling house and $2,500 for counsel fees and costs. The defendant's counterclaim was dismissed. Defendant appeals from the judgment entered against him.
Plaintiff argues that the trial court, having seen and observed the witnesses and having found as a fact that the testimony of Mrs. Lehmann was credible, the judgment against the husband should not be disturbed. In the case of Cartan v. Phelps , 91 N.J. Eq. 312 (E. & A. 1920), the decree of the Court of Chancery was reversed by the Court of Errors and Appeals, holding that "* * * the rule giving great weight in the appellate court to the Vice-Chancellor's finding on a question of fact imposes no restraint on the power of the former to ascertain, by full investigation and analysis of the evidence, what the facts are, and whether the general finding is consistent therewith. * * *" On a review under Rule 1:2-20 and 4:2-6, of any cause involving issues of fact not determined by the verdict of a jury, new or amended findings of fact may be made, but due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. In the instant case, we have concluded that it is essential that we review the evidence and reach our independent findings.
To accomplish a satisfactory review and analysis of the record, it necessitates a somewhat detailed discussion of the evidence.
The parties were married on November 14, 1933. Charlotte Naomi, the only child born of their marriage, is now approximately eleven years of age and is in the custody of the mother.
Plaintiff relies on four alleged acts of physical cruelty committed by defendant upon her, which occurred in January, 1938; October, 1946; July, 1947; and Labor Day week-end, 1947. The mental cruelty of which plaintiff complains consists of defendant's alleged excessive use of alcohol; the manifestation of symptoms of delirium tremens, causing her great
pain, concern and fright; attempting to make her believe she was going insane and the so-called practice of voodooism.
The alleged acts of physical violence testified to by plaintiff, and denied by defendant, were isolated incidents occurring over a period of fourteen years. The first act allegedly occurred in January, 1938, at which time she stated that she was pregnant; that when she remonstrated with him about his drinking, he became angry and knocked her to the floor against the couch. The second act did not occur until eight years later, in October, 1946, when he came home late in a drunken condition, sleeping until late the next day; when he arose she argued with him, stating "there were a lot of words," he called her a maniac and then hit her in the face with his open hand. The third incident occurred in July, 1947, when she states that he came home late and she again remonstrated with him about his drinking; she removed a knife from a kitchen drawer, threatening to kill herself, whereupon he took the knife, struck her in the face and she fell to the floor. Defendant testified that he did not strike her, but grabbed her arms for the purpose of taking the knife away from her; that on several occasions she had taken the kitchen knife from the drawer and threatened to kill both herself and him, and on these occasions he was forced to take the knife away from her. The fourth incident occurred shortly before Labor Day, 1947, when Mrs. Lehmann states that her husband had been drinking; that when she saw him sitting at the kitchen table with a glass of beer, she remonstrated with him again about his drinking, creating quite an argument, as she stated "there were a lot of words that night. All of them I don't remember but I became more and more upset;" finally, she ...