McGeehan, Jayne and Wm. J. Brennan, Jr.
The present appeal is addressed to a judgment nisi entered in this action on May 19, 1951, dissolving, subject to the usual condition, the marriage between the parties on the ground of desertion as alleged in the plaintiff's complaint, awarding the plaintiff alimony in the sum of $50 each week for the support of herself and that of the infant child of the marriage in her custody, together with the allowance of a counsel fee of $600.
Although the trial judge in his memorandum of conclusions stated:
"On the same testimony the cause could have been brought on the ground of extreme cruelty, Zehrer v. Zehrer , 5 N.J. 53 (1950), and any doubts I may have had regarding the testimony to support the charge of desertion could be resolved by an amendment of the pleadings, in accordance with R.S. 2:50-20.
On either ground the plaintiff is entitled to judgment."
we observe that the judgment is granted upon the ground of desertion, and we therefore review it in that character. Cf. Wood v. Wood , 97 N.J. Eq. 1 (Ch. 1925).
We learn from the transcript of the evidence that the parties were married on January 20, 1940. At the time of the marriage the plaintiff was 28 years of age and the defendant was 31. The only child of the marriage was born in January, 1942. The defendant is a travelling representative of Ingersoll-Rand Company whose employment has customarily necessitated his absence from home except during occasional intervals which in the aggregate would equal approximately six weeks a year.
The type of desertion to which the testimony related was the unjustified refusal of sexual intercourse willfully, obstinately, and continually persisted in by the defendant for a period of two years. Vide, Raymond v. Raymond , 79 A. 430 (Ch. 1909); Rector v. Rector , 78 N.J. Eq. 386 (Ch. 1911); Parmly v. Parmly , 90 N.J. Eq. 490 (Ch. 1919); Horwath v. Horwath , 91 N.J. Eq. 435 (Ch. 1920); Rains v. Rains , 127 N.J. Eq. 328 (E. & A. 1940).
The plaintiff testified that the last act of sexual intercourse between them occurred on June 28, 1948, since which time until the termination of their cohabitation on October 8, 1950, the defendant has on all opportunities refused such marital relations in disregard of her requests. The defendant admitted that since the year 1948 he had only had sexual intercourse with her once which, he testified, happened during the Christmas season in 1949. The plaintiff's complaint was filed on November 20, 1950.
Obviously, the determination of the period of the desertion could only be resolved by a consideration of the credibility of the divergent testimony. The experienced trial judge concluded from his "observation of the witnesses and their demeanor while testifying," that the testimony of the plaintiff was in that respect the more trustworthy. Nothing in the record confutes the propriety of that factual finding.
It is, however, the firmly established rule that a divorce will not be granted unless in addition to the plaintiff's testimony the essential elements of the cause of action are sustained by the requisite degree of corroboration. "To corroborate means to strengthen; to make more certain; to add weight or credibility." Orens v. Orens , 88 N.J. Eq. 29, 33 (Ch. 1917). "Corroboration need not be the testimony of witnesses; it may be furnished by surrounding circumstances adequately established." Robinson v. Robinson , 83 N.J. Eq. 150 (Ch. 1914), affirmed 84 N.J. Eq. 201 (E. & A. 1915); Becker v. Becker , 113 N.J. Eq. 286 (Ch. 1933); Pfeiffer v. Pfeiffer , 1 N.J. 55 (1948). Does the "entire picture" revealed by the evidence carry with it "a moral conviction that can be sensed from all the surrounding circumstances?" Vide, Franklin v. Franklin , 140 N.J. Eq. 127, 129 (E. & A. 1947).
In the present case, there is evidence of the habitual absence of the defendant for unusually extended periods of time from his home and wife; of his propensity to bestow his attentions upon his female acquaintances; of his associations ...