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Lowensten v. Lowensten

Decided: May 8, 1963.

DOROTHY LOWENSTEN, PLAINTIFF-APPELLANT,
v.
HOWARD ALVIN LOWENSTEN, DEFENDANT-RESPONDENT



Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Conford, S.j.a.d. Gaulkin, J.A.D. (dissenting).

Conford

[79 NJSuper Page 126] This litigation began in July 1958 as an action for separate maintenance. By amended complaint filed in April 1959 plaintiff sought a divorce on grounds of defendant's extreme cruelty and his adultery with a number of named women, and also payment to her of one-half the value of the household furnishings and other personal property in the home alleged to be owned in common. Subsequently the adultery charges were withdrawn as to all but three corespondents, whom we designate for present purposes as Mrs. G., Miss C. and Mrs. I. These women were all patients of defendant, a successful practicing dentist in Jersey City.

After a very extended and bitterly contested trial wherein 1500 pages of testimony were taken, and in which each of the alleged adulteresses appeared by counsel and asserted her innocence, a Chancery Division judge found neither the extreme cruelty nor adultery charges adequately proven or corroborated and dismissed the complaint. There was no specific adjudication in the opinion or the judgment as to the cause of action for property. Plaintiff appeals.

The parties were married in 1954. The only child of the marriage died shortly after birth in 1957. Plaintiff was in her early twenties, defendant about twice her age, when they married. She had been his dental assistant for some eight years before the marriage and gave him occasional professional assistance thereafter. He seems to have had no other or regular dental assistant. They lived, together with his mother, in a large house in which he also maintained his dental offices. Plaintiff continued her education on a part-time basis after marriage, securing a college degree from an institution in New York. She had almost achieved her doctorate when this action began. During the period of the alleged adulteries in this case plaintiff routinely was away from home Monday and Thursday afternoons and early evenings, attending classes in New York. She also regularly had dinner with her parents Friday evenings (without defendant). (The significance of these facts will appear hereinafter.) The parties lived comfortably during their cohabitation, frequently attended theatre and the opera, and made several extended vacation trips abroad. Their home was well furnished.

The evidence in this case makes it fairly apparent that defendant had unusual or abnormal sexual or quasi -sexual interests or pre-occupations, but that plaintiff tolerated them until April 17, 1958, probably because of defendant's financial ability to provide well for her. The central issues herein are whether the proofs, which in some respects are quite unusual, adequately establish either extreme cruelty or adultery; to what extent defendant's activities, relied upon to prove such

charges, were condoned by plaintiff, and whether any condonation was discharged by subsequent conjugal unkindness by defendant. We refer to the discussion hereinafter of the specific legal issues involved for further particularization of the material proofs.

I.

Plaintiff's assignments of acts of extreme cruelty are in two categories: (a) defendant's alleged erotic exploits, and (b) miscellaneous abuse, beatings and unkindnesses. We consider the latter first.

The episode of most substance was a physical conflict between the parties on February 17, 1958, when defendant discovered that plaintiff had extracted from his trousers pockets slips of paper containing the name and home and office telephone numbers of one of his patients, a Miss B., as to whom plaintiff entertained suspicions. He attempted to forcibly retrieve these slips from her, and in the ensuing scuffle she was struck and thrown, requiring medical treatment. As a result, plaintiff left the home and remained with her parents until April 6, 1958, when she returned upon defendant's promise not to repeat such conduct. We agree with the trial court's characterization of this episode as an isolated incident. It does not manifest and is not part of a pattern of behavior threatening the life or health of plaintiff or calculated to produce such wretchedness as would undermine the future performance of her marital duties. See Friedman v. Friedman , 37 N.J. Super. 52 (App. Div. 1955), certification denied 20 N.J. 135 (1955). This conclusion applies also to the other previous occasional unkindnesses and indignities complained of (not including the alleged infidelities), which we need not detail, when considered in the context of their remoteness and of the intervening enjoyment of normal marital relations between the parties and the acceptance by plaintiff from defendant of the many comforts and luxuries referred to in the opinion of the trial court.

The alleged incidents of extreme cruelty of an erotic character are best described in conjunction with the charges of adultery, as they present a composite and integral picture of the defendant's personality and activities, and of plaintiff's reaction to them, which must be appraised as an entirety in judging their factual impact.

II.

On June 7, 1956 plaintiff left for her regular Thursday college class in New York, but returned early because of illness due to pregnancy. She testified that when she arrived at home she found defendant and Mrs. G., a patient, in the nude having coitus on the dental office couch. Plaintiff's testimony as to this incident is replete with clinical detail which we need not discuss. Plaintiff left the marital bedroom at once and slept on the third floor of the house for three weeks. Upon defendant's overtures to her for reconciliation and his promises to behave properly thereafter, and because of her pregnancy, she resumed cohabitation with him. At the trial defendant denied the accusation and explained this occurrence as involving his carrying Mrs. G. to the couch because of her sudden loss of consciousness from pain while he was removing a denture from her mouth, at which juncture plaintiff arrived and accused them of misconduct. Mrs. G. also denied the incident on the witness stand. However, in both an answer and an amended answer, filed by different attorneys on his behalf about a year apart, defendant admitted this specific accusation of adultery with Mrs. G. and pleaded condonation. Defendant testified that his attorneys mistook the facts in admitting the adultery. Moreover, in an entry on one of a series of memorandum slips secreted by defendant under cover in the backs of his professional diaries (discussed further hereinafter) defendant noted, under date of June 7, 1956: "Grz caught!" This was explained by defendant on the stand as meaning that the denture "caught" in the frenulum (a tissue) of Mrs. G's mouth as he was removing it. Moreover, on the slip for July 1956 there is an entry on the

8th: "Grz consult," and on that of September 1956, entries on the 26th and 27th reading, respectively: "Call from Grz," and "Call from Grz don't call again."

Plaintiff testified, partly on direct examination and partly on cross-examination, that in December 1957 she found defendant in the office waiting room with a patient, Miss B., referred to above, his arm around her, and overheard him assuring her of relief of a pregnancy he was inferably responsible for. While defendant concededly denied his responsibility for the girl's condition to plaintiff at the time of the incident, plaintiff testified on cross-examination that she visited the girl's home in Leonardo and was told by the girl's mother in her presence that defendant was responsible for her pregnancy.

The resumption of cohabitation of the parties on April 6, 1958, as already noted, lasted only until April 17, 1958. On that day, testified the plaintiff, she entered defendant's office to find him in a passionate embrace with and familiarly caressing the body of Miss C. After upbraiding them she at once telephoned her father and asked him to take her to his home. Mr. Zelop, the father, testified that when he arrived the plaintiff told him, in defendant's presence, what defendant had done, and that the latter admitted it to him, saying "I guess I lost my reasoning." Both plaintiff and her father also testified that at her request he at once took her to Miss C's home to confront the latter, in her mother's presence, with her guilt; and that Miss C. hung her head, broke into tears, and asked plaintiff not to leave the defendant on her account. Miss C. testified, denying any impropriety with defendant. She admitted the visit of plaintiff and her father, but denied their testimony as to her reaction to plaintiff's accusation of misconduct with defendant, and asserted that she and her mother on that occasion reproached plaintiff for falsely charging her to be defendant's mistress. Miss C's mother, however, was not produced as a witness.

In December 1957 plaintiff took from one of defendant's desk drawers a number of his annual ...


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