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H. v. H.

Decided: December 17, 1959.

H., PLAINTIFF-APPELLANT,
v.
H., DEFENDANT-RESPONDENT



Conford, Freund and Haneman. The opinion of the court was delivered by Conford, J.A.D.

Conford

This is an action for divorce by the plaintiff-husband for extreme cruelty of the defendant-wife consisting of her maintenance of an active homosexual relationship with another woman, one E.F. Another count in the complaint charging the same acts to constitute adultery was withdrawn at the trial. The case was uncontested.

Defendant was subpoenaed by plaintiff, and appeared, attended by counsel, who offered on her behalf objections to any testimony sought to be elicited from her on the ground that it would tend to incriminate her. The objection was overruled with respect to certain matters hereinafter referred to.

At the conclusion of plaintiff's case, no opposition proofs being tendered, the court reserved decision and later filed a written opinion expressing conclusions adverse to the asserted cause of action. It concluded that: "Nothing has been shown to indicate any lewd, lascivious or indecent act engaged in by either defendant or E.F. * * *"; that plaintiff's testimony of alleged acts of cruelty "is unsupported and is not corroborated"; and that the proofs failed to establish that defendant's conduct "had a deleterious effect" upon plaintiff's health or safety or that "his life or health would be endangered if he continued the marital relationship." The case was regarded as "factual," turning "solely on the question of credibility of the plaintiff, his witnesses and exhibits."

Plaintiff's testimony was to the following effect. He is 29, the defendant 35. They were married in 1949 and have two children. He is a truck driver. They had owned a home

in L. but moved to P. in October 1955, where they resided together until plaintiff left the defendant, for reasons to be stated, in June 1956. At L. defendant had "a lot of relations with teenagers" which disturbed plaintiff because his wife was so much older than they. Defendant worked as an elevator operator in P. She told him occasionally that women she described as "Lesies" who got in her car would "try to make out with her." He told her it was not "right for her to do these things, to stay away from these women. They weren't normal * * *." She paid no attention to him, continuing to associate with them. "She started bringing them home with her." One night very late she brought home two or three of them. He identified them as "Lesies" by their masculine attire. He protested to defendant vehemently, but continued to live with her, hoping she would discontinue these associations. His work involved absences from home for days at a time. On several homecomings he found other women there who by their attire looked like Lesbians. For a period of time defendant had two young girls living there with her. She never answered his questions as to their origins but explained they watched the children for her while she was working or out of an evening. They had "arguments on this many times."

In June 1956 plaintiff came home one evening unexpectedly early, to find the apartment dark. When he turned the lights on he found the defendant in bed with a young woman by the name of E.F. Asked on direct examination as to his reaction to this occurrence, he testified: "Well, I just don't like the word 'queers.' I just don't like Lesbians of any form. * * * When I seen that they were together I knew right away who she was and it just bothered me very much. I got mad, sick and nervous and everything all at once. * * * Well, right then and there I knew I just couldn't live with her any more. * * * After her being like that for so long, just changed my opinion of her as a woman." He moved out of the apartment at once and has never lived with defendant since.

Later, Miss F. moved into the P. apartment (defendant testified this was in February 1957 and was arranged in order to economize after plaintiff's leaving) and lived there with defendant. Subsequently (October 1957, according to defendant) they moved to M., N.Y., where they had an apartment together, living there with the children of the parties. Defendant admitted to plaintiff at a domestic relations court hearing that she and Miss F. occupied the same bed. At the hearing herein she said they occupied the same bedroom. They were still living together at the time of the hearing.

In June 1958 plaintiff regained the custody of his children and they live with his parents. He resides at the home of his brother in F.

After leaving the P. apartment plaintiff came there occasionally to visit his children and to get some of his clothing. On one such visit, in going through a picture album, he discovered a number of photographs of the defendant in the company of Miss F. These were identified by defendant and admitted in evidence, after the court overruled objections offered on her behalf as a witness, based on the capacity of the answers to the questions to incriminate her. They were described as having been taken in 1956 and 1957. In most of them Miss F. appears dressed in mannish attire and with hair cut short and brushed back in the manner of a boy. The defendant is in normal feminine dress. Some of the poses show the couple embracing in the conventional manner of heterosexual sweethearts. One of the pictures shows them as one of a group of four couples, all women, in dancing posture on what seems to be a dance-floor, one partner in each couple being dressed in masculine attire.

On the occasion of another visit by plaintiff to his children (in defendant's absence) he found a box in her bedroom in which there was a packet of some 39 letters or notes inside an envelope. The outside of the envelope bore the inscription "To Fi" (Miss F's nickname) in handwriting ...


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