Kilkenny, Labrecque and Leonard. The opinion of the court was delivered by Leonard, J.A.D.
In this matrimonial action plaintiff wife appeals from a judgment dismissing her complaint for separate maintenance and granting defendant a divorce on his counterclaim predicated upon simple desertion -- her willful refusal to have sexual relations. Plaintiff also appeals from the award of a $7500 counsel fee to her attorneys, asserting it to be inadequate. Defendant cross-appeals from those portions of the judgment awarding support to his children and assessing the above counsel fee to plaintiff's present attorneys and a fee of $500 to her former attorney.
The parties were married on December 21, 1946. Two children were born, Ronald in 1952 and Mark in 1954. Between 1950 and 1952 defendant started a business, Boulevard Steel Company, in which plaintiff was given an interest. Shortly thereafter their business and social acquaintance, I. B. Steinberg, was made a one-third partner in Boulevard. In 1955 the parties purchased a home in Tenafly, New Jersey. Although the business apparently prospered during the next few years, the marriage did not. Ultimately, on July 1, 1964 defendant moved out of the marital residence.
On June 30, 1965 plaintiff filed a complaint for separate maintenance. Therein she enumerated many acts of indignity and cruelty allegedly committed by defendant. However, the basis of her cause of action was that defendant had abandoned her and had thereafter refused and neglected to properly support her and the children. Defendant filed an answer and a two-count counterclaim for divorce. The first count of the counterclaim alleged that plaintiff had been guilty of desertion by willfully and obstinately refusing to have sexual intercourse with him since July 1, 1963 and for a period of two years thereafter. The second count charged her with extreme cruelty.
Trial of the case (excluding many pretrial motions) consumed 22 separate days protracted over a 10-month period. Each party testified. In addition, each called numerous witnesses, among whom were accountants, psychiatrists, friends, relatives and business associates. All were examined at great length on both direct and cross-examination.
Following the hearings the court filed a written "statement of facts and conclusions of law." Therein, among other things, it found that the proofs demonstrated that plaintiff was guilty of simple desertion in that, commencing on July 1, 1963 and for a period of two years thereafter, she persistently and willfully refused to indulge in normal sexual relations with defendant; that defendant's conduct to plaintiff did not constitute extreme cruelty and that his act in leaving the home was not acquiescence in her desertion. Further, the court stated that upon the evidence adduced "defendant was not required to stay and suffer the indignities offered him and to submit to further insult as well as injury." Thereupon, judgment was entered dismissing plaintiff's complaint for separate maintenance and awarding defendant a divorce on his counterclaim on the ground of simple desertion. The second count of his counterclaim, which charged extreme cruelty, was dismissed. Plaintiff's motion for a new trial was denied.
Plaintiff first contends that the trial court erred in finding that plaintiff deserted defendant. In support of this position she offers a number of arguments against the validity of the court's holding which related to her "persistent and unjustified refusal * * * to indulge in normal sexual relations for two years." Before considering these, we note that it is not disputed that the continuous unjustifiable 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 on the ground of desertion. Pope v. Pope , 44 N.J. Super. 483, 487 (App. Div. 1957); Kirk v. Kirk , 39 N.J. Super. 341 (App. Div. 1956); Munger v. Munger , 130 N.J. Eq. 279, 282 (E. & A. 1941).
Plaintiff first argues that there is no corroborative proof for the finding that she refused to have sexual relations or that this refusal commenced on or about July 1, 1963 and lasted for two years thereafter. The court found corroboration not only from the testimony of specific witnesses but also from the surrounding circumstances shown by the totality of the evidence adduced. After considering all the proofs, the court concluded that defendant's testimony was given in "a most forthright and open manner" and, to the contrary, plaintiff's testimony was "unworthy of belief."
Defendant testified that the last occasion upon which plaintiff permitted him to have relations with her was on or prior to July 1, 1963; that at no time thereafter would she respond to his sexual advances, and that she refused his request for sexual intercourse at all times thereafter. Plaintiff, in her extensive testimony, never denied defendant's testimony on this issue, and the absence of this denial was noted by the court as an affirmance of the facts testified to by him. Helen Goldenberg, plaintiff's best friend and a witness for her, testified that at a reconciliation meeting held late in 1963, at which she was present, defendant said that they didn't live as man and wife and that plaintiff replied that "she was afraid to have any relations with Sam" and further admitted that this situation had existed from
four to six months prior to that meeting. Plaintiff's sister, Mildred Binder Olkan, testified that in the spring of 1963, while she was living at the home of the parties, she overheard arguments between them relating to plaintiff's refusal to have intercourse. Additionally, although Dr. Herman Alpert, plaintiff's psychiatrist, did not specifically testify that plaintiff told him that she ...