85 A. 712 (N.J. Ch. 1912)



Jonathan Hand, of Wildwood, and Lewis Starr, of Camden, for petitioner. Wm. Frank Sooy, of Atlantic City, for defendant.

Petition for divorce by George A. Redding against Margaret E. Redding. Decree advised refusing a divorce and dismissing the petition.

Jonathan Hand, of Wildwood, and Lewis Starr, of Camden, for petitioner.

Wm. Frank Sooy, of Atlantic City, for defendant.

GREY, Adv. M. The petition charged that the parties were married February 12, 1901, and that on October 22, 1903, defendant attempted to enter the bonds of matrimony with one William Sample or Semple, the marriage ceremony having been performed at Camden, N. J., on that date, and that defendant and Semple lived together as husband and wife from October, 1903, until May, 1904. The answer admits these charges of the bill, but asserts that defendant went through the marriage ceremony with Semple, believing her husband to be dead; that the petitioner sought her out in March, 1905 (she was not then living with Semple), and requested her to return and live with him and resume marital relations; that she thereupon went with him to Anglesea, N. J., although at that time and prior thereto petitioner knew of her attempted marriage to and of her living with Semple, and that the defendant and petitioner lived together as husband and wife from thence until May, 1912, when they parted by reason of cruel treatment on the part of the husband. The questions raised are entirely of fact. No legal principles are involved. From the facts admitted by the parties in the pleadings, and from the testimony taken, it appears that the parties were married in Philadelphia on the 12th of February, 1901. They quarreled and separated in October, 1902, and resumed marital relations again in December, 1902. They had another falling out in March, 1903, shortly after the birth of the only child, a daughter, and separated, not to again resume marital relations until March, 1905, during which period the attempted marriage and living with Semple by the defendant occurred.

There are but two issues in the case—one as to whether condonation has been proven, and the other as to who should have the custody of the child, if a divorce is granted.

The burden was upon the defendant to prove condonation. Various witnesses were called who swore that petitioner was fully aware of defendant's living with Semple as his wife for several months during the period of separation of petitioner and defendant from March, 1903, to March, 1905. This testimony of the defendant was contradicted by witnesses called for the petitioner, resulting in a very confused and unsatisfactory condition of the proofs. To ascertain the truth in this situation, it is helpful to scrutinize closely the character of the parties and their general conduct and their relations to each other. For this reason considerable latitude was given counsel in the examination of petitioner and defendant. George A. Redding, the petitioner, was engaged in the fish business at the time of his marriage. Since 1904 he has been borough clerk of Anglesea, N. J., at a salary of $500 a year and is still engaged in the fish business. In the summer of 1902 and 1903 he was employed as a life guard at Atlantic City. In the winter of 1902 he drove a wagon for Gimbel Bros. During the summer of 1904 he was employed at a hotel called "Singer's," a saloon in Atlantic City. On the witness stand he appeared to be a man of considerable physical powerand bold in character. He testified that because his wife did not tell him in May, 1912, why she was leaving him, he swore at her, using such language as "to hell with you," and worse language not necessary to quote. In September, 1902, he wrote his wife a letter (Exhibit D 13), in which he said: "I went to St. Louis and found out that the job was not what it was cracked up to be. I came home yesterday, Wednesday"—when, in fact, he testified he had not been to St. Louis, and had no job there. He was arrested in May, 1903, on a charge of theft, and was in jail about a week, and was then discharged, the grand jury finding no bill, but he forgot this episode, and also that he had written a letter from jail to Mrs. Redding, and it was only upon the production of the letter at the trial that he remembered his incarceration. He testified that while he and his wife were living together at Anglesea, after the Semple affair, he carried on correspondence and had seances with other girls. He swore that he had had no correspondence with other women within the last two years. He denied that he intended to admit adultery with any one when he testified that he had seances with other women. He seems to be fond of his child, and has voluntarily contributed $10 a month for the child's support since the separation in May, 1912.

Mrs. Redding, during the periods when she was separated from her husband (and not living with Semple) and at the time of the trial, was living with her mother, Mrs. Jones, either in Millville or Atlantic City. The testimony of various witnesses tended to show that, excepting the single instance of her illicit matrimonial adventure with Semple, she is a woman of good character, not addicted to drink, who took good care of her child, and when she kept house for her husband, the petitioner, he swore she took good care of him and the household. He said he believed she was true to him since they resumed their life together in March, 1905. Her appearance on the stand indicated to my mind a woman of somewhat weak or vacillating, but not of bad character.

Having in mind these general characteristics of the parties, the defendant offered evidence tending to show her husband's knowledge of her life with Semple. She says she lived with Semple until November, 1901; that they then parted, and she went to live at Millville, with her mother and her child. In the month of March, 1905, Mrs. Jones, the defendant's mother, having written to Redding that the child was sick, Redding, the petitioner, appeared at the Jones house, and a conversation occurred between petitioner and defendant, which the petitioner opened by saying, "What has become of your man?" to which she replied substantially that she had not any man, that he had gone. The man was not further discussed between them, and Semple's name was not mentioned. That same night Redding stayed with his wife at her mother's, and they resumed marital relations, and a few days afterwards he went to Anglesea, and she followed, and they lived together as man and wife until May, 1912.

This story of Mrs. Redding's is substantiated by her mother. Redding admits having received the letter from Mrs. Jones, the defendant's mother, and that, as requested by it, he went to Millville, and saw his wife, and arranged that they should live together again. In conformity with that arrangement, he says they shortly afterwards resumed marital relations at Anglesea, which continued until May, 1912. He denies, however, having held the conversation above referred to. Mrs. Yard, Mrs. Redding's sister, testifies that she made them a visit when petitioner and defendant were living together at Anglesea in 1905, and that the parties quarreled, and, in her presence, Redding said to his wife: "I am doing you a favor to live with you after you being married." Redding denies having made this statement. The next occasion when Redding is said to have disclosed knowledge of Mrs. Redding's relations with Semple was in January, 1907. Mrs. Redding testified that her husband showed her and read her two letters (which were offered in evidence). The first of these letters was contained in an envelope addressed, "Mrs. George Reading, Anglesea, New Jersey." The postmark on it reads, "Atlantic City, N. J. Dec. 29, 1900. 6 a. In." The letter itself, dated "12/28/06," starts thus: "Mrs. Sample or Mrs. Reading eather one will do I guess all right as yours father wishes me to tell you he has proofs that you have two Husbands living at this present time as youre Husband No. 2 visits us quite often." The letter contains frequent reference to husband No. 2. The second of these letters was contained in an envelope addressed to "Mr. George Redding, Anglesea, New Jersey, Book 106." It was postmarked Atlantic City January 3, 1907. The letter itself is dated "1/2/07," and begins: "Mr. George Redding Kind Sir Yours letter received where you said you Opened youre Wifs letter wich I am very glad you did for I wanted you to see what was in it as far as I am consuraned I am not afraid of any thing what I have said, you said the letter came to you like a thunderbolt I do not see how that can be for I was told that you had warned this mr. Sample and Mag frome going to geather so therefor you must of knowed him or you would not of doen that," etc.

Mrs. Redding says she did not receive the letter addressed to her, above mentioned, until she was shown that letter and the one addressed "Mr. George Redding," that they were both shown to her by her husband in 1908. She says her husband read the letters to her, and said: "I am not going to pay any attention to it because somebody is going totry to make trouble again for us." Later she testifies that he said: "I have two letters from Mrs. Cronin at Atlantic City about your marriage. What have you got to say about it?" She replied: "Nothing. You knew it long ago." To which he replied: "What if I did know?" and she answered: "Poor time to start trouble." Mrs. Cronin testifies as to these letters that she wrote the letter of December 28, 1906, to defendant, and received a reply signed, "George Redding." Although she did not know his handwriting, and did not know him personally, she took it to be his letter, and wrote the answer of January 2, 1907. She did not produce Redding's reply, and said she must have destroyed it with some other papers. Redding denies ever seeing the letters before the trial, and denies any conversations with his wife about them. I am inclined to believe the testimony of Mrs. Redding and Mrs. Cronin in regard to these letters, and Redding's possession of them. It will be observed that the letter of December, 1906, is addressed to "Mrs. George Reading," the writer apparently being unfamiliar with the proper spelling of the last name, but the letter of January, 1907, addressed to "Mr. George Redding" is correct in this respect; the latter's name being spelled as petitioner spells his name. The envelope containing the letter of January, 1907, also bears a post office letter box number, which was not on the envelope containing the former letter, thus indicating that the writer must have been informed on those two points.

The next exhibition of knowledge on the part of the petitioner is testified by the wife to have occurred in 1908, when Redding showed her a marriage certificate which was offered in evidence and marked "Exhibit D 1." It is dated October 22, 1903, and certifies that William Sample and Miss Maggie Jones, both of Atlantic City, were married by W. H. Burred at Camden. The certificate is witnessed by Alma H. Burrell. Defendant testifies that her husband came to her with this paper, and said: "Look what I have got. This is good proof of your having married," etc. She says, after he had showed it to her, it was in his possession in Anglesea up to the time of their separation. A sister of the defendant testifies that Redding showed the certificate to her, and said: "Here is a certificate, the proof of Maggie's marriage." The true history of this certificate is hard to come by. Mrs. Redding testifies that, when her husband showed it to her, he said he got it from Mrs. Cronin. Mrs. Yard, a sister of Mrs. Redding, swears she saw the certificate in the Redding house, while the parties were living together. Mrs. Warren Gordon, a neighbor of the Reddings, swore that she saw the certificate, Exhibit D 1, three or four years ago in the Redding house at Anglesea, when Mrs. Redding took it out of a bureau drawer and showed it to her. Mrs. Cronin testified that she got the certificate by mail after a personal visit to Miss Burrell in Camden, and that she gave the certificate to Mrs. Redding's father or grandfather some time prior to June, 1909, and did not give it to Redding, whom she did not know. Miss Burrell testified she was visited by Mrs. Cronin, and at her request made out the certificate (D 1) which was a copy of a lost original, and gave it to Mrs. Cronin some time in October, 1909. Mrs. Cronin says that certificate (D 1) was not the certificate received from Miss Burrell. Miss Burrell says she never made out but one certificate since the original, and that Exhibit D 1 is the one she gave to Mrs. Cronin. So far as matters of date are concerned, all the witnesses were very hazy and unsatisfactory. I could conclude nothing from their testimony in regard to dates. Even the petitioner and the defendant in their pleadings both err in stating they resumed marital relations in March, 1904, and each so testified on the witness stand, but at the closing of the case they corrected their testimony in this regard, asserting that it was in March, 1905, which I believe was the true date.

All this testimony touching Redding's producing and talking of the marriage certificate and having it in his possession is denied by him explicitly, and he tells this story. The certificate (D 1) being produced by him at the trial in response to the call of the defendant's counsel, he says that in May, 1912, while he and his wife and child were living together at Anglesea, his wife left him without cause, taking the child with her. Some three weeks afterwards he received a letter from a man named Ed. Fair, which letter was admitted in evidence, dated June 3, 1912, stating that their mutual friend, Frank Wilmer, was dead, and that before he died he had told the writer that Maggie (meaning Mrs. Redding) had married another man while Redding was in Florida seven or eight years ago. The letter requested that the petitioner should call upon the writer. Redding testified that he did call in response to the letter, and that Fair then gave him the certificate (D 1), and that that was the first time he had ever seen it and was the first he had ever heard of his wife's attempted marriage or of her living with Semple. Fair says that he called upon Wilmer when he was sick; that Wilmer told him to get some papers out of his trunk, which he did, and among which was the certificate (D 1). Fair in his first examination says he got the certificate from Wilmer's trunk in September or October, 1911; that he kept it from that time until June, 1912, without saying anything to Redding about it, but that, when he heard of Redding's separation from his wife in May, 1912, he felt justified in showing it to him. Fair was recalled at the end of the case to correct his dates, and he then said he got the certificate from Wilmer's trunk in July or August, 1910, or 1911, so that he must have had this certificate for either 10 months or a year and 10 months, but does not seem toknow which, before he showed it to Redding. There was no testimony to show how Wilmer came by the certificate. He was a friend of Redding's, however, and may have had it from the petitioner. There seems to be no conflict of dates in this regard, i. e., Wilmer may have had the certificate from July, 1910, till Fair delivered it to Redding, and still the story told by Mrs. Redding and her witnesses as above detailed may be true, so far as mere possession of the certificate is concerned. So, as to Redding's knowledge of the existence of the certificate, the preponderance of the evidence is certainly against his story of how he came by the certificate.

The final separation of petitioner and defendant occurred in May, 1912. She testifies (and in this she is supported by her mother) that he told her to get out; that he could not stand any longer her having lived with Semple; that she must leave his home. He denies this story, and says he did not know she was going, but came to his home one day in Anglesea and found her packing up. She would not tell him why she was going, but asked him to kiss her good-bye. A few days after her departure, he wrote two letters, one to Mrs. Redding's mother. This letter is dated May 10, 1912, in which he asks her: "Don't you think that Maggie and little Maggie had better come home, as I am very sorry for which I have done and said, and I promise you that I will forget and forgive the past and I will never mention it again," etc. He further says he is going to write to Maggie. Then he says: "Now that I come to think of it I have no one to blame but myself as I know that I was the cause of it all years ago, but I am in right here and I dont want to break up my home as I know what it is and what it will mean to little Maggie and myself. Now I am going to write to Maggie and ask her to come home before it gets out and I know that she will never regret it as I promise to do as I say," etc. He then wrote a letter dated May 11, 1912, addressed to "My dear wife & child." In this letter he says he is sorry for what he has said and done, and wants to come home. He says, "I will never cause you to regret it and will forget what has happened." Then he goes on to say: "Now I dont want to break up this home, as I have been quite a while making it, and I know that it is all my fault, and that I was the cause of it some years ago, while we were living in Atlantic, now don't think I will ever mention what has happened, I will forget and forgive the past, and I want you to do the same." What facts, then, in their previous marital life are referred to by the allusions in these letters about forgetting and forgiving the past and that he was the cause of it all years ago? Redding undertook to explain these references in the two letters; his explanation being that in the letter of May 10th, when he said he had no one to blame but himself, he referred to what happened in September, 1902, which was the time of their first separation. The testimony of Mrs. Redding in regard to the separation of September, 1902, was this: "In September (1902) my husband chased me out, and went away with another married woman (naming her) from Atlantic City." This testimony does not seem to be specifically denied by the petitioner. He explains the language in this letter, "I have no one to blame but myself because I was the cause of it all years ago," by saying that he referred to trouble in Atlantic City; that there was too much mother-in-law; that she wanted to live with her mother, and he could not see it, etc. At that time they were living on Texas avenue, and the mother was living in another house just back of them. These explanations do not explain, but, having in mind what had occurred between the parties, the letters seem to bear out the theory that Redding knew of the Semple marriage. These letters show an assumption by Redding for all the blame of their matrimonial troubles, and that he was the original cause of the trouble, and therefore is willing to forget and forgive acts which she did which required such forgiveness on his part, in order that there should be a continuation of marital relations.

The language in these letters perfectly fits the following facts appearing in the testimony: In September, 1902, she says he left her to go with a married woman. They resumed marital relations in January or February, 1903, following, and she testifies that in February, 1903, he was out every night meeting a woman called Nellie Burk. She refused to put up with this, and told him he could go, and he went. Then she says she did not see him again until March, 1905, when he came to Millville and persuaded her to resume housekeeping with him. Redding had admitted on the stand having seances with other women, correspondence with other women, and having received letters from Nellie Burk, one of them being dated as late as September 1, 1910, when he was living with his wife at Anglesea. If these things are true and the separation of September, 1902, and February, 1903, were on account of his running with other women, then he was the first at fault in offending against their marriage contract, and having left her for that reason she thereafter, by reason of his absence, went through the form of marriage and lived with Semple. For this he was in these letters taking the blame upon himself, stating that he was the original cause of all the trouble, asking her to forgive him for that and saying that he would forget and forgive her part in their troubles. This seems to me to be the natural explanation of the language he uses in the two letters of May 10 and May 11, 1912. In each letter he says, "I will forget and forgive the past," and that he wants her to do the same. In each letter he sayshe will never mention again what has happened. It is difficult to come to any other conclusion than that Redding knew that his wife had lived with Semple. The defendant lived with Semple as his wife openly from March, 1903, to November, 1904. Part of the time they were living together as husband and wife in the home of her sister and her sister's husband. They were so living together in Atlantic City and Philadelphia. During most of this time Redding was living in the same localities. In the spring of 1904 he was living at Anglesea. He was in Atlantic City in the summer of 1904, tending bar for Singer. While at Singer's his mother-in-law brought the little girl in to see him frequently, and he gave Mrs. Jones money for his wife. He says in reply to a question from his own counsel that he would not talk with Mrs. Jones about Mrs. Redding because he constantly saw the latter, his wife, all this occurring in 1904, when she was living with Semple in Atlantic City.

The probabilities are with the defendant's story. This case differs radically from the numerous cases in which the wife has a lover whom she clandestinely meets. Here is the open and notorious character of the living together of his wife with Semple in the community in which he was working. They had mutual friends, who knew of the Semple affair, and he had friends who knew of it. Indeed, most of the witnesses who testified on the subject (except Redding, himself) seemed to have known of the relations between Mrs. Redding and Semple—Yard, his brother-in-law, who was called as a witness; Wilmer, who Fair swore had the certificate (D 1) in his trunk prior to his death in 1910; Fair, who took that certificate from Wilmer's trunk, and had it from one to two years before the separation of the parties in May, 1912. It is difficult to believe that all of these close friends of the petitioner having this knowledge should not have mentioned it to him, and should have carefully kept their knowledge from him. I have endeavored to confine this discussion to such facts as the defendant has supported by her own testimony and that of additional witnesses or of circumstances supporting her testimony, and which facts have only been controverted by Redding himself or by one witness.

Upon the whole, my conclusion is that the burden of proving condonation has been sufficiently carried by the defendant, under the rule prescribed in Letts v. Letts, 79 N. J. Eq. 630, 82 Atl. 846; Graham v. Graham, 50 N. J. Eq. 709, 25 Atl. 358. I will therefore advise a decree refusing a divorce and dismissing the petition.

Application for the custody of the child is also denied, as the court has no jurisdiction over the custody of the child in this proceeding, unless a divorce is granted. Weigel v. Weigel, 60 N. J. Eq. 331, 47 Atl. 183.