Goldmann, Haneman and Foley.
Defendant appeals from a judgment nisi awarding plaintiff a divorce on the ground of adultery, and from the dismissal of her counterclaim for separate maintenance. It is contended that (1) the trial court erroneously concluded that an act of adultery was committed since it based its decision entirely on the uncorroborated testimony of plaintiff; (2) the trial court erred in finding that defendant's failure to call the corespondent as a witness could be considered as corroborative of the charge of adultery since he was called by plaintiff and testified he did not engage in any act of adultery; (3) certain hearsay testimony was erroneously admitted; and (4) dismissal of the counterclaim for separate maintenance was improper. It is not asserted on this appeal that the trial court's finding of adultery was against the weight of the evidence.
We have the benefit of a comprehensive opinion filed by the Chancery Division judge, in which he thoroughly reviewed the testimony, evaluated the proofs, passed on the credibility of the witnesses, and set out his conclusions of law with supporting authorities. He concluded that the adultery charged had been established by the proofs, within the test laid down in Berckmans v. Berckmans , 16 N.J. Eq. 122 (Ch. 1863), affirmed 17 N.J. Eq. 453 (E. & A. 1864), the leading case in this State on the establishment of adultery by circumstantial evidence, and quoted with approval in
Eberhard v. Eberhard , 4 N.J. 535 (1950), where the proof also was purely circumstantial. He found that this was a bitterly contested case without the slightest suggestion of collusion; that plaintiff's testimony was forthright and remained unshaken despite vigorous cross-examination, and that its truth was well-founded in the probabilities inherent in the circumstances; and that defendant's denial of the adultery and her account of what transpired on the evening when plaintiff found her and the corespondent in flagrante delicto were of "such a low caliber as to not only tax the credulity of a reasonable man, but indeed, to brand her account as a 'tall story.'"
Defendant appears to take the position that plaintiff's eye-witness account of the act of adultery had no probative value since it was not corroborated by another eye-witness. This overlooks entirely the well-established principle that corroboration of adultery may be circumstantial. Corroboration need not come from the lips of other eye-witnesses; it may be found in the surrounding circumstances, adequately established. Meek v. Meek , 92 N.J. Eq. 23, 24 (Ch. 1921); Gilbert v. Gilbert , 24 N.J. Super. 473, 481 (Ch. Div. 1953), and cases cited. The best evidence of which the nature of the case is susceptible suffices. Lasker v. Lasker , 91 N.J. Eq. 352 (Ch. 1920); Meek v. Meek , above; Smith v. Smith , 96 N.J. Eq. 59 (Ch. 1924).
The degree of requisite corroborative proof varies from case to case and cannot be expressed in a rule of general application. Eberhard v. Eberhard , above (adultery); Orens v. Orens , 88 N.J. Eq. 29 (Ch. 1917) (desertion). The mere fact that the wife's testimony involved significant contradictions and was obviously false, as the trial court justly found in the present case, is self-indicative of guilt and corroborative of the charge. Thomas v. Thomas , 104 N.J. Eq. 607, 608 (E. & A. 1929). As to corroboration in adultery cases, see, generally, 11 N.J. Practice (Herr, Marriage, Divorce and Separation) (1950), § 1397, p. 626, and 1960 Pocket Part, p. 159, where it is said that although, ordinarily, a
court is reluctant to grant a judgment of divorce for adultery upon the uncorroborated testimony of a single witness, especially as against the explicit denial under oath of defendant and the alleged paramour,
"* * * Yet the testimony of a single witness may be sufficient, depending upon the probability of his story, the character of the witness, the consistency of his evidence and perhaps somewhat on the character of the defendant [citing Derby v. Derby , 21 N.J. Eq. 36, 53 (Ch. 1870)]. As in other cases, subject to the best evidence rule, the testimony of witnesses, including the plaintiff, may be corroborated by surrounding facts and circumstances adequately established [citing Janner v. Janner , 113 N.J. Eq. 110, 112 (E. & A. 1933); Osborne v. Osborne , 122 N.J. Eq. 12, 16 (E. & A. 1937); Eberhard v. Eberhard , above]."
We have read the entire record and find it manifest that plaintiff's eye-witness testimony, corroborated by the surrounding circumstances, the patently false story told by defendant, and other elements in the proofs detailed in the trial court's opinion, fully sustain a finding of adultery in terms of inclination and opportunity.
Two police officers who were called to the scene testified that the corespondent had told them he had known defendant for a period of some two years. (Defendant's testimony, and that of the corespondent, was that they had met for the first time on the night in question.) Defendant was not present when the statement was made. When defense counsel objected to any testimony by the first of the two officers as to a conversation he had had with the co-respondent out of defendant's presence, the trial judge said he would allow it "as far as it pertains to the corespondent, and it is not binding on the defendant at this point. However, I may reconsider and allow it to be binding on her after I hear further testimony." At the conclusion of the officer's testimony defense counsel moved to strike from the record any statement by the ...