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Gilbert v. Gilbert

Decided: February 4, 1953.


Ewart, J.s.c.


[24 NJSuper Page 474] This is a suit for divorce for constructive desertion founded upon the defendant's alleged acts of extreme cruelty which compelled the plaintiff to separate herself from him. The complaint was filed March 28, 1952.

Defendant, who was served personally with process at Trenton on May 19, 1952, failed to answer and his default was entered July 3, 1952. Proofs were heard ex parte December 8, 1952 and the deposition of Rev. Samuel Steinmetz, an Episcopalian minister, who was ill and unable to appear in court, was taken by the plaintiff at Trenton on January 17, 1953, pursuant to an order had for that purpose.

The complaint charges the defendant with a course of cruel treatment towards the plaintiff commencing November 1, 1947 and continuing to December 10, 1949 when, she says, she was compelled to leave the defendant, and consists of the following acts as enumerated in the complaint:

(1) In July 1948 defendant removed plaintiff and their child to a remote, isolated, and unsanitary habitation in San Joaquin Valley, California. He was frequently away on business trips for long periods during which she and the child were left alone, by reason whereof she suffered extreme apprehension and fear for the health and safety of herself and child.

(2) Defendant treated her more as a servant than as mistress of the home and by his frequent absences and omissions she was forced to perform hard labor about the home to the detriment of her health.

(3) Defendant showed a lack of affection and concern for the welfare of their child in that, on one occasion on October 30, 1949, the infant child wandered perilously near the brink of a deep excavation and when the plaintiff screamed a warning to the defendant, he being nearer the child than she, he told her to get the child and exhibited no concern for the child's safety in view of the imminent danger, as a result of which the plaintiff suffered loss of appetite, loss of sleep and mental agony over the child's narrow escape.

(4) During the months of April, May and June 1949, in the presence of the plaintiff, defendant exhibited revolting and extreme cruelty (no details given) towards animal and wild life, as a result of which she was rendered sick and nauseated.

(5) During the months of November and December 1947, January, March, April, May and December 1948, and May and November 1949, defendant was guilty of extreme cruelty towards the plaintiff in that he subjected her, against her will, to gross abuse of marital rights by compelling her to submit to oral intercourse which caused her extreme mental agony, undermined her health, and made her marriage unendurable.

The complaint charges that by reason of the course of cruel treatment to which plaintiff was subjected by the defendant, as aforesaid, her health was impaired; her life was rendered wretched and miserable; she was incapacitated from performing her duties as a wife; and that, if she be compelled to remain subject to the control of the defendant, her health will be further impaired and her life will be rendered so wretched and miserable as to completely incapacitate her from performance of her matrimonial duties.

I find from the proofs submitted that the parties were married March 16, 1947 at Merced, California; that they cohabited together in California until December 10, 1949; that one child, a daughter now four years of age, was born of the marriage and is in the custody of the plaintiff; that the plaintiff left the defendant in California December 10, 1949 because of his alleged course of cruel conduct towards her; returned to her mother in Trenton, N.J. on or about that date; and has resided in Trenton continuously since on or about December 10, 1949. I find that the date and fact of marriage as alleged in the complaint; continuous bona fide residence of the plaintiff in Trenton, New Jersey from about December 10, 1949 to the date of hearing in this case; and that the parties have been living separate and apart and have not resumed cohabitation since December of 1949, have all been proved and adequately corroborated by the proofs offered.

And the plaintiff's testimony respecting the unnatural sexual practices forced upon her by the defendant, of which there is no direct or express ...

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