Berger v. Berger

• Court: Rhode Island Supreme Court
• Writing for the Court: STEARNS, J.
• Citation: Berger v. Berger, 44 R.I. 295, 117 A. 361 (R.I. 1922)
• Decision Date: 14 June 1922
• Docket Number: No. 5585.,5585.
• Parties: BERGER v. BERGER.

117 A. 361

BERGER

v. BERGER.

No. 5585.

Supreme Court of Rhode Island.

June 14, 1922.

Exceptions from Superior Court, Providence and Bristol Counties; Arthur P. Sumner, Judge.

Action by Rose Berger against Samuel Berger. Prom judgment for plaintiff, respondent brings exceptions. Exceptions overruled, and case remanded.

Lee & McCanna, George J. Sheehan, and James A. Lee, all of Providence, for plaintiff.

Robinson & Robinson and David C. Adelman, all of Providence, for respondent.

STEARNS, J. The proceeding is by petition brought by Rose Berger to vacate a final decree in divorce, which was entered in the superior court February 5, 1921. After a hearing, the petition was granted by a justice of the superior court on the ground that the respondent was guilty of fraud in causing the final decree to be entered. To this decision the respondent duly excepted, and the cause is before this court on respondent's bill of exceptions.

The petition for divorce was filed by the petitioner, Rose Berger, in the superior court November 26, 1918. The grounds alleged therein were extreme cruelty and neglect to provide. On September 5, 1919, after a hearing, decision was given for the petitioner. On September 27, petitioner was permitted to amend the petition for divorce by adding thereto a prayer that she be awarded the custody of a minor child, and on the same day the custody of said child was awarded to the petitioner. In the summer of 1920, petitioner and respondent became reconciled. They secured a dwelling house in Providence, and there lived together as man and wife until February 11, 1921, when the respondent abandoned petitioner. On February 5th, six days before he left petitioner, the respondent went to the office of an attorney who had first represented the petitioner in the divorce proceedings, and told the attorney that he was going away, and that he wanted a copy of the final decree in the divorce proceedings. The attorney told him to go to the office of the clerk of the superior court and there secure a copy of the decree. Respondent thereupon left the attorney's office and in a short time returned, and informed the attorney that a final decree had never been entered, and that the petitioner, Rose Berger, desired to have a final decree entered. At some stage in the divorce proceedings, Mrs. Berger had secured another attorney to conduct her cause, and at the request of respondent, the attorney first mentioned telephoned to the attorney who had last represented Mrs. Berger, and this attorney, upon being informed of the alleged request of the petitioner, thereupon on the same day, February 5th, procured the entry of the final decree in divorce. This attorney testified that the petitioner had requested him to have the final decree entered some time after the decision was made, but before the six months had elapsed when final decree was in order for entry (section 19, c. 247, Gen. Laws), and that he had the decree entered, as he supposed at the time, in accordance with petitioner's wish. In fact, however, the decree was entered without petitioner's knowledge or consent.

It...