Eastwood, Bigelow and Jayne. The opinion of the court was delivered by Jayne, J.A.D.
In the state of matrimony, infidelity may be condoned but it is never forgotten by the disillusioned spouse. The pain is endured, but the wound is seldom completely healed. The infection of imperishable mistrust keeps the wound open.
On June 5, 1930 Doctor Robert Jonitz and Gertrude Tries were wed at the Little Church around the Corner in New York City. They established their marital home in East Orange, New Jersey, where the doctor has pursued his profession successfully. For at least a decade they seem to have cohabited harmoniously and toiled cooperatively. Two sons were born of the marriage. The residence in East Orange and a summer cottage at the seashore were acquired.
Despite a false lower left leg and a distortion of the right ankle which have in some degree intensified his temperamentality, the doctor has been strenuously energetic in the performance of his professional services. He thus learned the value of a dollar and has not been heedless of the lesson in the fiscal affairs of his family.
Perhaps as early as 1940 discord began gradually to break in upon the existing marital concord. Suspicions came to visit the mind of Mrs. Jonitz (and not without subsequently revealed cause) that the doctor's social companionships with a nurse and with one of his female patients in particular
were not decorous or entirely platonic. The marriage thereafter became progressively frosty with only a few periodical thaws from the warmth of the doctor's professed repentance and his wife's tentative forgiveness.
On September 8, 1951 Mrs. Jonitz and her two sons, Robert, now 18 years, and Paul, 15 years of age, departed from the home and have not since returned.
On November 14, 1951 Mrs. Jonitz instituted the present action against her husband in quest of separate maintenance. The complaint as amended consists of three counts, the first of which alleges that in the month of August 1949 the defendant without justifiable cause abandoned the plaintiff and separated himself from her; the second relates to the plaintiff's ownership of certain personal property in the possession of the defendant (a subject with which we are not here concerned); the third charges that on September 8, 1951 the plaintiff was obliged to separate from the defendant by reason of his extreme cruelty to her and because of the defendant's adulterous indulgences.
The trial judge, learned and experienced in the hearing and determination of cases of this nature, resolved that the plaintiff failed adequately to prove the essential allegations of the first and third counts of the complaint, hence the entry of a judgment of dismissal of her action for separate maintenance. The judgment additionally absolved the defendant from any express obligatory requirement to provide for the support of his son Robert, granted to the plaintiff the custody of the son Paul, directed the defendant to pay to the plaintiff the sum of $35 each week for Paul's maintenance, and awarded to the plaintiff's attorneys a counsel fee of $1,350 together with their costs and disbursements. The plaintiff appeals from the dismissal of her alleged cause of action. The defendant by cross-appeal impugns the awards for the maintenance of Paul and for counsel fees.
As one might well imagine the transcript of the testimony is descriptive of the many mutually provoking, exasperating, and vexatious incidents sprinkled over a span of a dozen years of growing marital discordancy.
An expression of the conclusions we have derived from our knowledge and consideration of the evidence will be more serviceable than an exhaustive recitation of the testimony.
The inferences arising from the narratives of the parties tend to indicate that the doctor is easily irritated and when incensed it is said that anger blazes in his eyes and his invectives are more profane than polished. He has been parsimonious rather than prodigal, but those characteristic traits have been known to his wife and family for years. "We didn't have an abundance of sweet things. We didn't have an abundance of delicacies. We didn't have an abundance of sea food; little things we would like to have," said the plaintiff.
In contrast the defendant has regularly provided his wife with the services of a household maid and with an automobile for her exclusive use. Additionally there was the furnished summer cottage near the bay where the sons had their own sail boat and row boats available for their pleasure. Indeed, it is acknowledged that during the years of their youth the sons had perhaps an oversupply of playthings. It seems to us exceedingly improbable that the family, as the plaintiff endeavors to imply, suffered continuously from the lack of adequate food.
Then, too, the representation of the plaintiff that she has been obliged to make her dresses out of feed bags has a fantastic flavor. On the other hand, the asserted temperamentality of the defendant is persuasively portrayed by the conceded circumstance that he has refrained from conversing with his elder son Robert for the past three years.
The plaintiff has disinterred from the experiences of her married life many of the last mentioned complaints and attempted to ascribe to them an exaggerated significance in the present litigation. Some light, however, was mingled with the gloom. There were such pleasureable occurrences as the trips of the family to Panama, to Yellowstone Park, and throughout the New England states.
It is a reasonable deduction that natural jealousy nourished by a succession of marital indiscretions on the part of the
defendant served gradually to dampen and disintegrate the sustaining affections of the parties, to generate discord and an incompatibility in the patterns of their inclinations, and ultimately to induce the plaintiff to terminate their continued cohabitation. The frost finally nipped both of them.
The two boys had now grown up. The plaintiff doubtless entertained the thought that her sacrificial responsibilities in their behalf had been substantially discharged and that in view of the indignities to which she had been subjected the defendant deserved nothing more from her. It may be that the defendant became inconsolable ...