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Wheeler v. Wheeler

Decided: December 26, 1957.


Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.


Plaintiff sues for separate maintenance and defendant counterclaims for divorce.

Leave to appeal having been granted, defendant husband seeks review of so much of an interlocutory order of the Chancery Division as directed (1) payment of a $1,000 counsel fee pendente lite to his wife's attorney, and costs; (2) dismissal of the second count of his counterclaim for divorce on the ground of extreme cruelty; and (3) giving plaintiff leave to take his deposition as to his financial status, the cost to be paid by him.

The parties married in 1930 and lived together until the end of February 1955, when plaintiff left the marital

home, taking with her cash, U.S. War Savings Bonds and securities, together totalling at least $250,000. Defendant at once brought an action for an accounting (Docket C-1904-54) alleging -- the details are unimportant here -- that the money, bonds and securities were his, he had never made or intended to make a gift of them to his wife, and she had taken them without his knowledge or consent. The wife filed no answer, the action being settled a few months later and a dismissal entered. We have before us the release, prepared by the wife's attorney and executed by her August 24, 1955, reciting that in consideration of the settlement and of her husband paying "approximately $100,000 for the due maintenance and support" of plaintiff, she released and forever discharged him from any action, claim or demand, past, present or future, which she might have against him by reason of any cause whatsoever.

In May 1957 plaintiff instituted her present action for separate maintenance, charging that defendant had unjustifiably separated from her in February 1955 and refused and still refuses to make adequate provision for her support and maintenance. As though anticipating a possible defense, she alleges in her complaint that the release executed in August 1955, although stating that $100,000 was for her maintenance and support, actually represented a property settlement and not a lump sum settlement of her right to support. Defendant's answer denied he had separated himself from plaintiff; detailed the 1955 accounting suit and its ultimate settlement by whose terms plaintiff retained in excess of $100,000, which money was intended for her maintenance and support; admitted he had not paid her any additional sums since she took his money and securities, but denied he was in default or had violated any law with respect to plaintiff's support. By way of counterclaim defendant sought divorce on two counts, the first charging desertion in February 1955, and the second extreme cruelty.

The first part of the extreme cruelty count alleges that plaintiff's cruel treatment of defendant began shortly after the marriage; that over the years and in increasing measure

she called him vile and offensive names; that she incessantly accused him of adultery with many of his friends and patients, with nurses and employees of the various hospitals with which he was connected, and with wives of his associates; that she maliciously told his associates and others in the medical profession that he was addicted to narcotics; that she told many of his medical associates and patients that he had illicit relations with their wives; that in 1954 she stated to the medical director of the Presbyterian Hospital of Newark that he was having illicit relations with his operating nurse; and that she habitually insulted friends who visited their home, so that it became impossible for defendant to entertain them there. The remainder of the second count sets out specific acts of alleged extreme cruelty. To all these charges plaintiff entered a categorical denial.

It was not until after the filing of this counterclaim that plaintiff asked for pendente lite relief. She moved for an order directing defendant to pay her reasonable support, counsel fees and costs pendente lite , striking the extreme cruelty count of the counterclaim on the ground that it was too general in its allegations, and permitting her to amend her complaint to request reformation of the release to conform to the intention of the parties, viz. , that the $100,000 paid to her was in complete settlement of the accounting action and not a release of her right to support. The motion was supported by her affidavit charging that defendant had taken to excessive drinking and, while under the influence of liquor, physically abused her; that he threatened to have her committed to a mental institution; that fearing his treatment and threats she had taken $250,000 in money, bonds and securities in February 1955 and left the marital home to live in New York; that the release she had given was merely in settlement of the accounting action and did not represent support that might be due her; and that despite his means defendant was not supporting her. She claimed she needed $361 a week to live. She denied the charges made in the counterclaim, both as to desertion and extreme cruelty.

The husband countered with a motion to dismiss the complaint and directing that his deposition not be taken. (It does not appear from the pleadings just when plaintiff may have requested the taking of such deposition.) The motion was supported by his affidavit again rehearsing the facts of plaintiff's departure with his funds and securities two years before, and charging that in the end she had managed to retain for herself over $148,000, or more than half of his assets. Defendant denied he had ever physically mistreated or threatened plaintiff, or that he drank liquor to excess. He charged plaintiff with having left him, and with a course of cruel and inhuman treatment, including calling him vile and offensive names and continually accusing him of adultery and with being a drug addict. Finally, he alleged that plaintiff had more than adequate funds to support herself; that he did not abandon or refuse to support her, and that she had brought the present action in bad faith for the purpose of harassing him.

Accompanying defendant's affidavit were the affidavits of two medical associates and friends. The first doctor states that plaintiff repeatedly told him defendant was having affairs with his wife and the wives of his associates, with nurses and many of his patients, and that he was addicted to drugs. The second states that shortly after plaintiff left her home she told him she had done so because defendant was having affairs with his nurse and patients and was drinking to excess; further, that in the summer of 1954 when he was treating defendant for a serious vascular ailment, plaintiff told him there was no necessity for continuing on the case because another physician had been engaged.

In a reply affidavit plaintiff denied the allegations made in the affidavits of her husband and his associates.

The Chancery Division judge denied defendant's motion, and also plaintiff's application for support pendente lite , with the condition that if the court found for her on final hearing, she would have the right to apply for support retroactive to the date of her motion. He considered her

request for a $6,500 counsel fee pendente lite as excessive, but allowed $1,000. He also granted plaintiff's request to amend her complaint to include reformation of the release, and ordered the taking of depositions as to defendant's financial status, at his expense. Finally, he granted the motion to strike the second count of the counterclaim for failure to set forth acts of extreme cruelty with particularity, defendant being given leave to amend so as to state with particularity the following:

"the vile and offensive names plaintiff is alleged to have called defendant;

the names of defendant's friends, patients, nurses, employees of the various hospitals with which he is connected and wives of his associates, with whom plaintiff is alleged to have ...

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