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Sperling v. Sperling

Decided: May 21, 1952.

ROSE M. SPERLING, PLAINTIFF-APPELLANT,
v.
BERNARD A. SPERLING, DEFENDANT-RESPONDENT



Eastwood, Bigelow and Francis. The opinion of the court was delivered by Francis, J.c.c.

Francis

[19 NJSuper Page 572] In this action the plaintiff wife sought a judgment for separate maintenance. The complaint charged

the defendant husband with constructive abandonment and failure to support her and the two children of their marriage. After several hearings the trial court found that she had failed to establish either the constructive abandonment or the failure to support in accordance with his means.

The parties, who are first cousins, were married on October 21, 1936, in Poland. At the time the wife, a United States citizen, was on a visit there and her prospective husband, whom she had never met before, was about to be discharged from the Polish army. After a few weeks acquaintance they married.

Three weeks later she returned home and in November, 1937, arranged and paid for his transportation to this country.

At the time of his arrival she had an apartment in Brooklyn and was working as a bookkeeper. He moved in. Almost from the beginning their marital life has been one of discord and marked by frequent separations for substantial periods. In fact, the record indicates that from November, 1937, until November 21, 1947, when the complaint was filed, they lived together for a total of three years and three months.

In support of her case plaintiff recited the history of their unhappy life, their frequent separations and the causes thereof, defendant's irresponsibility as a provider, and the physical and verbal acts and conduct which she claimed justified her occupancy of a separate bedroom after August 26, 1947. While we have given serious consideration to the adverse findings of the trial judge and to his opportunity to see and hear the witnesses, our independent study of the record has led to the conclusion that the greater weight of the credible testimony demonstrates both defendant's constructive abandonment and his delinquency in the matter of support.

Even though in separate maintenance actions corroboration of the plaintiff is not a prerequisite as it is in divorce actions (Zehrer v. Zehrer , 5 N.J. 53 (1950); Gerhold v. Gerhold , 109 N.J. Eq. 634 (E. & A. 1932);

Pinkinson v. Pinkinson , 92 N.J. Eq. 669 (E. & A. 1921)), substantial independent aid for her charges appears in the proof.

The evidence discloses that while defendant had a trade when he came to the United States, he was out of work for a protracted period. During this time, approximately five months, plaintiff supported him. When he finally obtained employment he gave her a very meager portion of his earnings. This produced difficulty between them and on November 30, 1938, after pregnancy had made it necessary for her to cease working, he left her. The leaving is conceded by defendant, who said he did so because she kept nagging him about money. On December 1, 1938, she caused his arrest for non-support and the records of the Domestic Relations Court of Kings County, New York, were introduced to confirm the fact.

In connection with these New York proceedings, testimony of the defendant about an assault and battery complaint, said to have been made against him by his wife, throws significant light on his credibility. This complaint was not referred to by the plaintiff at all nor made one of the acts of cruelty relied upon here; but he said that his wife had him arrested for an assault and battery alleged to have been committed one evening on the steps or platform of a Brooklyn, Manhattan Transit Company station. On being asked where he was that evening, he recalled clearly being at night school from 8 P.M. to 11 P.M., because he had been asked by the principal to "make a little speech in reference to the new country that I entered," and he made such a speech in the auditorium. He told this to the police who called the principal, verified the story, and released him immediately. His examination was not concluded on this day and upon the resumption thereof some time later, he ...


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