Hofmann v. Hofmann

Page, J.:

The judgment demanded is a permanent separation. The facts alleged in the complaint, which are therein stated to have caused the plaintiff acute mental suffering and distress and to constitute the grounds of cruelty and inhuman treatment and improper conduct, relate entirely to the defendant’s having obtained a decree of divorce from the plaintiff in the State of Pennsylvania, and caused the same to be served upon her, and thereafter contracted and entered into a marriage with another woman, with whom the defendant resided in the borough of The Bronx. It is alleged that the defendant has caused divers persons, including the children of the marriage between plaintiff and defendant, to be informed of the divorce and marriage and has represented to said children that they should meet and affiliate with the woman with whom he was living. It is alleged that the defendant did not secure a bona fide residence in Pennsylvania, and that process was not personally served on the plaintiff and that she did not appear in the action, by reason whereof the decree *598was null and void; and that the defendant is living in adulterous intercourse with said woman.

The complaint states facts sufficient to constitute a cause of action for a divorce upon the ground of the defendant’s adultery. (Kaiser v. Kaiser, 192 App. Div. 400.) It also states facts not necessary to such a cause of action, upon which is predicated a demand for a judgment of separation. We cannot treat this complaint as stating two causes of action, one for divorce and the other for a separation. These causes of action "cannot be united in the same complaint. (Zorn v. Zorn, 38 Hun, 67; Conrad v. Conrad, 124 App. Div. 780.) In the case of Johnson v. Johnson (6 Johns. Ch. 163) the bill contained charges of adultery and of cruel and inhuman treatment. The question was submitted whether the charges could be united in the same bill and if they could, not, whether the plaintiff might elect which charge to retain. Chancellor Kent held that as they were distinct and independent charges leading to distinct issues and decrees they could not be joined in the same bill. The reasons given by the chancellor, translated into the terms of our present practice, as there has been a change in form and terminology rather than of substance, are as follows: An answer to a charge of adultery may be unverified, but if the complaint is verified the answer to the charge of cruel usage must be verified. If the charge of adultery be denied, the court must, on the application of either party, or may of its own motion, direct a trial of that issue by a jury, but the issue as to cruel usage is to be tried by the court. If the adultery be confessed or if the defendant defaults in answer or upon the trial, still the evidence to support the charge must be taken, while if the defendant confesses the other charge or makes' default, the admission is conclusive and judgment follows as of course. The judgments in the two cases are essentially different. In the one it is an absolute divorce, with a disability to the defendant to marry again; in-the other the divorce is only a mensa et thoro, and may be for life or for a limited time, in the discretion of the court. The two charges are thus inconsistent with each other, in respect to the mode of proceeding, and the remedy; and it leads to confusion, to connect them together in the same bill. The charge of adultery overpowers and *599destroys the force and effect of the other charge, for the one remedy merges in the other.”

A complaint which alleges a cause of action for a divorce on the ground of adultery, but demands judgment for a separation from bed and board, cannot be sustained. “ For the mere allegation that the defendant has been guilty of adultery has never been held to amount to an allegation of cruel and inhuman treatment of plaintiff by defendant, or of such conduct on the part of the defendant towards the plaintiff as may render it unsafe and improper for the former to cohabit with the latter.” (Allen v. Allen, 125 App. Div. 838.) Therefore, although this complaint states facts sufficient to constitute a cause of action for a divorce, it cannot be sustained as stating a cause of action for a separation unless facts are stated which would constitute such a cause of action. While the rule that to constitute cruel and inhuman treatment, physical mistreatment and bodily harm, or the reasonable fear thereof from violence are requisite, has been so extended that outrageous and inhuman treatment of the plaintiff by the defendant, which causes pain and mental suffering is sufficient, still the rule is based on the theory of bodily harm, the courts recognizing that to compel a wife to submit continually to such mistreatment would tend to affect the health as surely as would personal violence.

There are cases where the outrageous and indecent conduct of the defendant in association with acts of adultery has been held sufficient to sustain an action for a separation, as for instance where the husband brings his paramour into the home, or where he boasts to his wife of having committed acts of adultery, and especially if such boastings are in the presence of the children or others, and still insists on cohabiting with her. In the case under consideration, there is no allegation that the defendant has communicated directly or indirectly the fact of his remarriage or sought to impose upon the plaintiff an association with the woman with whom he was living, or that he has insisted on cohabiting with her or even returned to her. The allegations of the complaint are solely that the defendant obtained a decree of divorce from plaintiff, which.must be presumed to have been valid according to the laws of the State where granted, and subsequently married. *600As there is no allegation that the marriage took place in this State, it probably would be recognized as valid everywhere except in this State, where, for reasons of public policy, we have refused to recognize decrees of divorce entered in actions against citizens of this State unless jurisdiction was obtained by personal service of proces's upon the defendant within the foreign State or an authorized appearance for the defendant was entered in the action. The complaint further alleges that after obtaining such decree he returned to this State and lives in an adjoining county, but within the same city, and has informed people that he had obtained a divorce and had thereafter married the woman with whom he was living, and that he had invited his children to meet and affiliate with the said woman.” It is not alleged that he had «tried to entice the children away from the plaintiff, or persuade them to live with him. The gravamen of the complaint is the adultery of the defendant; the other allegations are incidental thereto and a not unusual result of the varying divorce laws in our different States. In my opinion, the complaint fails to state facts sufficient to constitute a cause of action for a separation. The plaintiff must bring her action for the relief given her by statute. (See Code Civ. Proc. § 1762 et seq.)

The order should be reversed and the motion denied. As the defendant did not move for judgment, we cannot dispose of the issue of law. . :

Clarke, P. J., Laughlin and Smith, JJ., concur; Merrell, J., dissents.