Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.
This is an action for divorce on grounds of desertion constituted by willful, continued and obstinate refusal by the defendant husband to have sexual intercourse for a period of two years with the plaintiff wife. The defendant was not represented at the hearing. The trial judge held that plaintiff's case was not corroborated by testimony of others or by circumstances of an extent and character sufficient to carry a "moral conviction" of its truthfulness and consequently dismissed the complaint.
Plaintiff gave this testimony. The parties were married in 1945. They lived in a five-room apartment in a property they owned until April 1955, when she moved out after they reached a property settlement. Prior to April 1953 they quarreled frequently over his staying out nights and not telling her where he had been. At that time "we had a grand fight over the same subject and he said he was through, he didn't love me any more. He felt like he didn't want any more of me, any part of me socially or physically and he took all his personal belongings and moved them to the other end of the apartment and he started to live there." Thereafter there were no sexual relations between them whatsoever. At one point she stated that whenever she saw him, "which was infrequently," she "would plead with him" to live with her as man and wife but he refused, said he was "through." Later in the hearing she said that during the next two years she asked him to resume cohabitation "at least a couple of times a week," or about "a hundred times altogether." She asked both her sister and father to talk to her husband about the problem but nothing came of their efforts. She was also under a doctor's care "for a nervous disorder."
Plaintiff's sister, Mrs. Johnson, testified she lived next door to the parties and was in their home taking care of it daily while plaintiff was at work and visited there evenings. The parties had "a very serious argument" in April 1953 and plaintiff asked her to intercede with defendant. She talked to him and he told her he was "through" with his wife. Nevertheless she took the subject up with him again "as often as I saw him," which would be once or twice a month, and he continued his refusals, the last just prior to the institution of the action in April 1956, altogether "fifteen or twenty" times. She could tell by the "condition of the bed" in plaintiff's bedroom that only one person slept there. She never saw any of his clothing in that room "after April 1, 1953." Neither plaintiff nor the sister described defendant's supposed sleeping arrangements at the house. Plaintiff's father was not called as a witness at all.
A close personal friend of plaintiff, Theresa Palkowitz, with whom she went to live after leaving defendant, testified she visited the home of the parties regularly, "once or twice a week," leaving at "ten or eleven at night" and never saw defendant there, in fact "wouldn't know what he looked like."
A Dr. Ittleman testified he treated plaintiff, beginning in July 1953, for about three years for complaints of "intense nervousness, tension, emotional upset and depression." He was obviously about to testify that plaintiff told him that she felt her condition was due to the husband's refusal of relations, but the trial court would not permit it, ruling from authority in the negligence field that the physician could not repeat so much of the history received from the patient as went to "how [the complaints and symptoms] are received" and that the proffered hearsay was not within the rule of Haskell v. Haskell , 99 N.J. Eq. 399 (E. & A. 1926). The doctor was, however, permitted to say that the plaintiff told him about "her marital difficulties" and that he attributed her symptoms to those difficulties.
In dismissing the complaint for the reason noted above the trial judge said, as to the testimony of Mrs. Johnson:
"From my observation of the plaintiff's sister while on the witness stand and considering the nature of her testimony compels me to withhold granting any credence to the same."
Plaintiff's major point of appeal is that the denial of credence to the testimony of the sister was arbitrary and capricious "since it was not shown to be contradicted, impeached or inherently improbable," citing Rains v. Rains , 127 N.J. Eq. 328 (E. & A. 1940). This decision illustrates the rule that the continuous withholding of sexual relations against the will of the other spouse for the statutory two-year period will give rise to a cause of action for divorce as for desertion. The court reversed a denial of a judgment nisi by an advisory master explained as based upon his finding that the testimony of the petitioner and her mother was untrue from his observation of their appearance and manner of testifying and because their testimony "matched" and was "improbable." The review of the testimony in the opinion of Judge Wells indicates that the Court did not agree that the uncontradicted testimony was improbable and it quotes with approval (127 N.J. Eq. , at page 331) the earlier opinion of the Court in Cartan v. Phelps , 91 N.J. Eq. 312, 316, 317 (E. & A. 1920), to the following effect:
"Where, as here, the character of a party for truth and veracity is unimpeached, and his testimony is uncontradicted, is not contrary to circumstances in evidence, and contains no inherent improbabilities or contradictions which alone or in connection with other circumstances in evidence excite suspicion as to the truth of the testimony, it will be given effect."
We think there was ample basis for the exercise of the fact-finding function by the trial judge adversely to plaintiff's cause within the criteria in the quoted excerpt. It is well recognized that corroborative proof of this kind of complaint is difficult and it is for this reason that the hearsay restrictions are relaxed to permit easier access to the truth, Haskell v. Haskell, supra; Franklin v. Franklin , 140 N.J. Eq. 127, 129 (E. & A. 1947). Yet the contention is ...