Bernstein v. Bernstein

DESMOND, P. J. David Bernstein obtained an interlocutory decree of divorce from his wife Rebecca on the ground of extreme cruelty, the court finding that she “treated plaintiff in a cruel and inhuman manner, which acts and conduct on the part of the defendant caused plaintiff grievous physical and mental suffering. ’ ’ Defendant appeals claiming that there was no corroboration of the important and material facts relied upon by the plaintiff as a basis for his decree; also, that an unreasonable lapse of time occurred before the commencement of the action. She depends upon the provisions of Civil Code sections 130 and 124 as requiring a reversal. The first mentioned section provides that “No divorce can be granted . . . upon the uncorroborated statement, admission, or testimony of the parties . . . but the court must . . . require proof of the facts alleged. ...” Section 124 provides that “A divorce must be denied: One . . . Two . . . Three. In all other cases when there is an unreasonable lapse of time before the commencement of the action.”

No specific acts of cruelty were alleged in the complaint but respondent testified at some length concerning a series of oral onslaughts, criticisms, accusations and misrepresentations directed toward him by his wife. Examples, as related by the plaintiff, follow: nagging continued over a period of years; accusations of misconduct with young women; committing adultery; having abortions performed; paying blackmail to avoid' trouble; cheating her in business; and conspiring with others to cheat her. He testified that there was no truth in the charges, but that the defendant made the derogatory [603]statements not only to him, bnt to members of his family, to his friends and to people from whom he bought and to whom he sold goods. He stated as to her conduct, “It was continually getting into controversies about all sorts of things, and mainly accusing me of not having any brains, being a bad business man and not listening to her advice, and incidentally it would always come up about the terrible family that I came from.” All the grievances concerning which the plaintiff testified occurred before the separation of the parties in 1936 in Portugal, where their business of dealing in antiques had taken them. It was agreed between them at that time that they would liquidate their properties and each take one-half thereof. Evidence was produced at the trial from which the court might have determined that their agreement was substantially carried out. Shortly after January of 1936 respondent went to New York and later to London and Palestine. It appeared that his wife lived with him briefly in each of those places but their conjugal relations were not continued after 1938, according to appellant; after 1936, according to respondent.