Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
Plaintiff appeals from a judgment of the Chancery Division dismissing her complaint for separate maintenance and awarding defendant a divorce on the ground of extreme cruelty on his counterclaim.
The complaint was in three counts: (1) for separate maintenance on the ground of abandonment and failure to support; (2) for separate maintenance on the same grounds, with the additional vaguely worded charge that defendant had "frequently committed adultery with a person or persons unknown to plaintiff for several months past"; and (3) to recover $1,800 which plaintiff claimed she had had to pay for necessities because of the defendant's failure to support her, the source of the money being $2,000 allegedly inherited from her mother. Defendant generally denied the allegations of the complaint and set up by way of separate defense that plaintiff had been guilty of extreme cruelty toward him from August 1, 1949 to July 6, 1953, when he was physically forced out of the marital apartment. Defendant also counterclaimed for annulment on the ground of fraud on the marriage (this ground is not seriously pressed) and for divorce on the ground of extreme cruelty.
The action was sharply contested, the hearing taking five trial days. In mid-hearing plaintiff, through her attorney, announced that she would not press the second count charging adultery, for lack of direct proof, and subsequently this count was formally abandoned. The attorney stated at the trial, as he does on this appeal, that it was not his intention to prove adultery, and if adultery were shown "it was merely as an adjunct of the abandonment."
It is not clear from the record whether the count seeking recovery of $1,800 was dismissed. At any rate, the notice of appeal is limited to the dismissal of "the complaint for separate maintenance." We are in complete accord with the conclusion reached by the trial court that the proof offered by plaintiff on the third count altogether failed to support her claim.
This leaves for our consideration only the first count of the complaint seeking separate maintenance, and
the counterclaim for divorce. It is established law that in an action for separate maintenance brought under the statute, N.J.S. 2 A:34-24 (formerly R.S. 2:50-39, as amended) the wife must prove, in addition to the marriage, two other elements -- an unjustifiable abandonment or separation by the husband, and his refusal or neglect suitably to provide for her. These two elements must concur. Zehrer v. Zehrer , 5 N.J. 53 (1950); Danzi v. Danzi , 142 N.J. Eq. 662 (E. & A. 1948). On the issue of abandonment, the relation of the parties prior to the separation, the past conduct of the husband, as well as prior separations and prior suits between the parties, are relevant and may characterize the abandonment complained of. Cf. Elliott v. Elliott , 48 N.J. Eq. 231, 235 (Ch. 1891).
The statute requires that the abandonment or separation of the husband shall be "without justifiable cause." The wife's commission of a matrimonial offense affords justifiable cause for the abandonment. Gross v. Gross , 22 N.J. Super. 407 (App. Div. 1952). Nothing short of the commission of such an offense, cognizable as a cause for divorce, will excuse the abandonment. Munger v. Munger , 21 N.J. Super. 49 (Ch. Div. 1952), modified in 24 N.J. Super. 574 (App. Div. 1953). In McNeel v. McNeel , 126 N.J. Eq. 255, 257-258 (E. & A. 1939), it was held that either adultery or extreme cruelty constitute justifiable cause for the husband leaving his wife, but to be available to him in her separate maintenance action, such charge must be pleaded as well as proved. Where a husband seeks to justify his separation on the ground of his wife's alleged extreme cruelty, her conduct must be proved to have been of the same degree and quality as is necessary to warrant a judgment of divorce for extreme cruelty. Dinnebeil v. Dinnebeil , 109 N.J. Eq. 594 (E. & A. 1932); Pfender v. Pfender , 106 N.J. Eq. 373 (Ch. 1930); McLean v. McLean , 104 N.J. Eq. 208 (E. & A. 1929); Cavileer v. Cavileer , 94 N.J. Eq. 160 (E. & A. 1922). The resolution of the single question of extreme cruelty will therefore determine both the complaint and counterclaim.
The opinion filed by the trial judge stresses his opportunity to observe the demeanor of the parties and their witnesses and to judge their credibility. Noting that the principals to the action did not agree as to the facts, he examined the testimony of the supporting witnesses, as well as other elements in the case which he referred to as affording "mute testimony" as to where the truth lay. The judge stated that he was convinced that plaintiff was "not the shrinking, abused person she seeks to impress upon the court"; that her actions and attitudes spoke much louder than her words; that she trifled with the truth and impressed the court as "a woman with an uncontrollable temper who would stop at nothing to attain her end." While recognizing that charges of extreme cruelty made by a husband against his wife are not easy of proof, and require close examination, the court was of the confirmed opinion that defendant had proved his case.
The findings of the court below will not lightly be disturbed on appeal. The trial judge had the distinct advantage of observing the demeanor of the witnesses and a better opportunity to judge of their credibility than a reviewing court. Zehrer v. Zehrer , 5 N.J. 53, 61 (1950). We conclude that the judgment of the Chancery Division must be affirmed.
It may be observed that the counterclaim as well as the testimony dealt with a number of situations and a series of acts starting in 1949 and continuing almost down to the filing of the answer and counterclaim on October 5, 1953. Although the statute, N.J.S. 2 A:34-2(c) (formerly R.S. 2:50-2(c), as amended), relating to actions for divorce on the ground of extreme cruelty, provides that no complaint for divorce on this ground shall be filed until after six months from the date of the last act of cruelty complained of -- but see in this regard Soos v. Soos , 14 N.J. Misc. ...