Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Devine v. Devine

Decided: July 3, 1952.

KATHRYN DEVINE, PLAINTIFF,
v.
HELEN DEVINE, DEFENDANT



Ewart, J.s.c.

Ewart

The plaintiff, daughter-in-law of the defendant, by her complaint seeks the aid of this court and demands a judgment "enjoining and restraining the defendant, Helen Devine, from the doing of any acts designed or having the effect of maliciously and improperly interfering with the marital relations between the plaintiff and her husband, or to in any wise do and perform any acts seeking to further alienate the affections of the plaintiff's husband or to do or perform any acts designed to harass and terrorize the plaintiff and prevent her from endeavoring to preserve her marital status for herself and her expectant child in a proper and lawful manner."

The complaint alleges that plaintiff was married to John Devine, son of the defendant, on August 5, 1950; that she and her husband resided together happily until the latter part of June 1951; that on June 18, 1951 plaintiff's husband was inducted into the U.S. Army Air Force, and stationed at Langley Field at Virginia for training; that plaintiff was employed at Rutgers University in New Brunswick and could only see her husband on week-ends; and that her husband drove his car from Virginia to New Brunswick on a week-end at the end of June 1951 and invited her to return in the car with him to Virginia for the week-end, but that she was compelled to refuse because of the length of the trip and the necessity of her being at work at 9:00 A.M. on the Monday morning following. The complaint charges that the defendant took offense at the plaintiff's refusal to spend the week-end with her husband in Virginia and, shortly after the husband's departure, telephoned the home of plaintiff's parents and became noisy, threatening and abusive over the 'phone, accusing plaintiff's parents of interfering with her son and the plaintiff; made insulting remarks over the 'phone, and threatened to go to the home of the wife's parents "to straighten them out once and for all." It appears that while the plaintiff was not living with her parents, she was visiting there at the time and that plaintiff took the telephone and attempted to explain the matters to the defendant, but [20 NJSuper Page 525] the latter refused to listen and the conversation was discontinued abruptly. The complaint further charges that a short time after the occurrences above mentioned the defendant gave plaintiff's husband a false account of the foregoing occurrences and maliciously and falsely informed plaintiff's husband that she, the defendant, had been grossly insulted on the 'phone by the plaintiff and by the plaintiff's family; that they had sworn at her and treated her discourteously; that her good name had been compromised; that she had been humiliated by the family of the plaintiff; that the family honor of plaintiff's husband had been reflected upon by the occurrences above mentioned; that the plaintiff was evading and not performing or fulfilling her obligations as a wife should; that the plaintiff had made untrue and harmful remarks about her, the defendant; that the plaintiff was otherwise unfit to continue to live with her husband as his wife; that henceforth the defendant would not permit the plaintiff to come into her home and would not be recognized or treated by the defendant as the wife of her son; for all of which the defendant demanded satisfaction of her son. The complaint further charges that as a result of the foregoing statements and actions of the defendant, quarrels developed between the plaintiff and her husband and that the husband, on or about October 4, 1951, deserted and abandoned the plaintiff who by that time was pregnant, and that plaintiff's husband had refused to maintain, provide for and support her as he was legally obliged to do and otherwise disregarded her status as his lawful wife. The complaint charges such desertion, abandonment and refusal to support was caused by the false statements and improper representations maliciously made by the defendant to her son as aforesaid and that the same were made for the purpose of interfering with and destroying the marital felicity then existing between the plaintiff and her said husband. And the complaint further charges that by reason of the matters above recited, the plaintiff has been deprived of the support of her husband; has been receiving no financial help of any kind from him since

October 1951, despite the fact that he receives substantial compensation for his services in the Air Force; and that the plaintiff's husband is now (at the time of filing of the complaint) in the U.S. Air Force stationed in Korea. The complaint further charges that the defendant, as a result of her malicious, fraudulent, deceitful and false representations to her son, has secured through her son an allotment of $100 from the Government on account of the son's service in the Air Force and that by reason of the defendant's actions she, the plaintiff, has been deprived of an allotment which her husband might otherwise have made for her benefit and has been deprived of other Government benefits such as insurance, etc.

The complaint further charges that defendant's interference with the plaintiff and her husband was malicious, illegal and improper and was designed to separate the plaintiff and her husband and to have the plaintiff's husband return to his mother. And the complaint further charges that on various occasions between June and October of 1951, while the plaintiff was alone in her apartment, the defendant telephoned at various and sundry times during the night time and aroused the plaintiff and then when the plaintiff arose and answered the 'phone the person who called would hang up (how the plaintiff knew it was the defendant who telephoned does not appear). Plaintiff says that such conduct by the defendant created fear and dread in the plaintiff's mind; caused her apprehension and distress; that the plaintiff became terrified and despondent, sick, disabled and bewildered, and has been compelled to seek relief from the court.

It is to be noted that the complaint in this cause was filed March 29, 1952; that the acts complained of extended from the latter part of June 1951 until the month of October 1951; that the plaintiff's husband has been in the armed services all during that period and, at the time of filing the complaint, was stationed in Korea, although just when plaintiff's husband was first sent to Korea does not appear by the allegations of the Complaint.

Defendant, before answering, has moved to dismiss the suit because of lack of jurisdiction of the subject matter of the complaint and because the complaint fails to state a claim against the defendant upon which relief can be granted.

The gist or gravamen of this suit, as I read the complaint, is for the loss by the plaintiff of her husband's consortium by which is meant loss of marital affections, comfort, society, assistance and services. Grobart v. Grobart , 5 N.J. 161, 165 (1950). The suit appears to be grounded upon the alleged alienation of the affections of the plaintiff's husband by the false and malicious statements and misconduct charged to his mother, the defendant.

The plaintiff has no adequate remedy at law since the enactment of the "Heart Balm" statute, L. 1935, c. 279, R.S. 2:39 A -1. That statute, as a matter of public policy, has outlawed suits for damages for alienation of affections. The statute was held constitutional in Bunten v. Bunten , 15 N.J. Misc. R. 532 (Sup. Ct. 1937). However, the statute is in derogation of a common law right; is to be strictly construed and not stretched to cover more than its plain language would justify; and there is nothing in the statute that would prohibit a suit for injunctive relief as distinguished from a suit for money damages.

This suit was filed March 29, 1952. The latest offensive act charged to the defendant in the complaint is during the month of October 1951. Injunction is primarily a preventive remedy intended to afford relief against future acts or conduct which are against equity and good conscience, and to preserve and keep a thing in statu quo , rather than to remedy what is past and done or to punish for wrongs already committed. Society for Establishing Useful Manufacturers, etc. v. Morris Canal and Banking Co. , 1 N.J. Eq. 157, 191 (Ch. 1830); Attorney General ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.