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Schlesinger v. Schlesinger

decided: July 31, 1968.

ROBERT H. SCHLESINGER
v.
NATALIE J. SCHLESINGER, APPELLANT



Kalodner, Staley and Seitz, Circuit Judges.

Author: Kalodner

Opinion OF THE COURT

KALODNER, Circuit Judge.

This is an appeal by the wife defendant from a Judgment of absolute divorce awarded to the husband plaintiff on the ground of incompatibility of temperament. Defendant's critical contention*fn1 is that the evidence failed to establish a state of incompatibility of temperament within the meaning and contemplation of the Virgin Islands divorce statute, 16 V.I.C. ยง 104(a).*fn2

We must turn to the evidence to determine whether it adequately supports, within the meaning and contemplation of the Virgin Islands divorce statute, the District Court's finding of incompatibility of temperament.*fn3

These "background" undisputed facts may be stated in preface of our review of the testimony on the score of incompatibility:

The parties were married in Christiansted, St. Croix, Virgin Islands, on November 15, 1962 when plaintiff was 44 years old and defendant was 35; he was then, as he is now, engaged in the real estate brokerage business in St. Croix; he has a $28,000 annual income from a trust estate; defendant is a college graduate; prior to her marriage she was employed by the Government of the Virgin Islands; since the parties separated she has been employed as a real estate saleswoman; plaintiff and defendant were each twice married prior to November 1962, and these marriages were dissolved by judicial decree; they are childless; they lived together for almost three years until their separation in mid-September 1965; the instant action for divorce was commenced on December 2, 1965 and it came to trial in February, 1967; in March 1965 -- two and a half years after their marriage -- they made plans for the construction of a $65,000 house; retained architects to prepare plans for the house and arranged financing of its construction.

Coming now to the evidence bearing on the issue of incompatibility:

Plaintiff testified that his marriage, almost from its inception, was marked by a series of verbal quarrels punctuated by defendant's acts of violence; three weeks after the marriage defendant struck him with her slipper when they quarreled; two weeks later they quarreled again and this time she struck him with a candlestick and bit his leg, and he had to strike her to break her hold on him; about a year later there was another quarrel in which she struck him with a vase; in March 1965 -- about two and a half years after the marriage -- she hit him with a heavy glass tumbler, and pierced his lip with a fork during another quarrel; in August and September 1965 they had several quarrels in the course of which she struck him in the face with a hairbrush, threw a drink in his face, bit his arm, and ripped his shirt; during this last quarrel which took place September 13, 1965, he had to bite her finger (which was thereby broken) in an effort to extricate himself from her hold on him; quarrels often followed defendant's "drinking".

Defendant in her testimony vigorously denied she had committed any of the acts of violence charged by plaintiff during the quarrels which antedated those which occurred in August-September; she in substance characterized these earlier quarrels as being of the garden variety of normal husband-wife quarrels which were immediately forgotten and which did not affect their relationship of loving husband and wife; plaintiff sent her to Europe in June 1965 to buy furniture for their recently projected new $65,000 home, and while she was there he sent her at least six letters in which he declared his great love for her and told her how badly he missed her, and she replied in kind; during her European visit plaintiff telephoned her on one occasion because he had not received mail from her for several days and he told her he did so because he was concerned about her well-being; their marriage came to grief when she learned upon her return from Europe on August 5, 1965, of plaintiff's attentions to a 21-year-old young woman and he told her he wanted a divorce so that he could marry this girl; they had bitter quarrels as a result which were marked by mutual violence; despite all that had happened she still wished to be reconciled and "I certainly think it [the marriage] could be reconciled".*fn4

Defendant in corroboration of her testimony that her relationship with the plaintiff prior to her return from Europe was that of loving husband and wife adduced the testimony of their servants and mutual friends to that effect.

It must be noted parenthetically that the plaintiff, while denying any illicit relationship with the young woman involved, testified that "I ran after her", and did not deny that he had told defendant he wanted a divorce so that he could marry this young woman.

On our review of the entire evidence we are "left with the definite and firm conviction that a mistake has been committed"*fn5 in the District Court's fact-finding that a state of incompatibility of temperament existed which supported its granting of an absolute divorce to the plaintiff, and that the finding was "clearly erroneous" and must be reversed for that reason. Korn v. Korn, 398 F.2d 689 (3 Cir. 1968), decided June 28, 1968.

The marital history of the parties on this review, must be divided into two chapters; the first chapter embraces their relationship from the date of their marriage in November 1962 until her return from Europe on August 5, 1965; the second chapter, their relationship ...


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