Borda v. Borda

• Decision Date: 15 June 1922
• Docket Number: No. 5589.,5589.
• Citation: 117 A. 362
• Parties: BORDA v. BORDA.
• Court: Rhode Island Supreme Court

117 A. 362

BORDA

v. BORDA.

No. 5589.

Supreme Court of Rhode Island.

June 15, 1922.

Appeal and exceptions from Superior Court, Providence and Bristol Counties; J. Jerome Hahn, Judge.

Suit for divorce by Wenceslao Borda against Avice Weed Borda, in which respondent filed a motion in the nature of a cross-petition for divorce from the petitioner.Decree granting divorce to the respondent and enjoining petitioner from prosecuting divorce proceedings in another jurisdiction, and petitioner excepts and appeals.Exceptions overruled, and decree affirmed.

Knauer, Hurley & Fowler, of Providence, for petitioner.

Tillinghast & Collins, of Providence, for respondent.

SWEETLAND, C. J.The above-entitled cause is a petition for divorce in which the respondent, availing herself of the statutory provision in that regard, has filed a motion in the nature of a cross-petition, in which she asks for the affirmative relief of an absolute divorce from the petitioner.

The petitioner has not prosecuted his petition, but after the filing of respondent's said motion has sought to discontinue.This the petitioner was not permitted to do, and thereby Impair the respondent's right to have a hearing and determination upon her motion in the nature of a cross-petition.Borda v. Borda, 43 R. I. 384, 113 Atl. 118.

The respondent's motion was heard in the superior court before Mr. Justice Hahn, who entered his decision granting the respondent an absolute divorce from the petitioner upon the grounds that the petitioner was guilty of extreme cruelty toward the respondent, of adultery, and of gross misbehavior and wickedness repugnant to and in violation of his marriage covenant with the petitioner, in that he consorted with another woman, and that he caused the registration of the birth and the making of the baptismal record of a child as that of himself and the respondent when said child was not that of the respondent.

At the hearing before Mr. Justice Hahn, the petitioner appeared by counsel, and, although he did not testify or present evidence in defense, he did contest the granting of the respondent's motion by the cross-examination of her witnesses and by numerous objections to the rulings of said justice made at the hearing; his exceptions to which rulings he has pressed before us.

Prior to said hearing, the petitioner had been enjoined by the superior court from prosecuting a proceeding for divorce from the respondent which he had instituted in Porto Rico after the filing of his petition and the motion of the respondent.Although it appeared to said justice that the petitioner had violated the decree of injunction and was in contempt, nevertheless no objection was offered by the respondent, and the petitioner was given a full opportunity to present such evidence as he desired in support of his original petition and in defense of the cross-petition of the respondent.

The petitioner excepted to the ruling of said justice in which he refused to dismiss the respondent's motion in the nature of a cross-petition.The petitioner contended in the superior court, and also before us, that the evidence shows that the respondent was not a domiciled inhabitant of Rhode Island for two years prior to the filing of said motion, and hence that the superior court did not have jurisdiction to hear and grant said motion.The exact domicile of the petitioner at the time of filing his petition is somewhat uncertain.He clearly was not a domiciled inhabitant of Rhode Island.He did reside for portions of the year in Porto Rico, but the evidence supports the finding of the justice that the petitioner was, as he himself alleges in his petition, a resident of the city of New York.The respondent before her marriage to the petitioner had been a resident of the town of Narragansett.When, as she claims and as said justice found, she was forced to leave the petitioner in 1016 because of his cruel treatment of her, she returned to Narragansett, where she owned a house which she occupied and where she had lived for about three years and a half just before the filing of said motion.The evidence warranted the finding of said justice that for more than two years prior to filing her motion in the nature of a cross-petitionthe respondent had the intention of making the town of Narragansett her permanent residence, and that she was a domiciled inhabitant of this state within the requirement of the statute.The petitioner being without a domicile in this state was obliged to rely upon the domicile of his wife in order to give the superior court jurisdiction over his petition for divorce, and in said petition he made oath that the respondent has been "a domiciled inhabitant of the state of Rhode Island and has resided in said state, to wit, in the town of Narragansett, in Washington county, for a period of more than two years next before the preferring of this petition."

The petitioner excepted to the decision of said justice that the petitioner had been guilty of extreme cruelty towards the respondent.There was no evidence before said justice of physical violence upon the part of the petitioner toward the respondent, but there was shown a course of conduct, on the petitioner's part, willfully and maliciously persisted in, which naturally resulted in causing in the respondent a wretchedness of mind affecting her health and making it impossible for her to longer endure conjugal relations with the petitioner.This court has departed from the doctrine of earlier cases requiring evidence of physical violence or of threats of such violence to establish a charge of extreme cruelty in divorce.Grant v. Grant, 44 R. I. 169, 116 Atl. 481.

The justice was warranted in finding that the respondent was in ill health from the time of her marriage to the petitioner to the time of their separation; that she was very fond of her daughter, the issue of a former marriage, and also of a sister and s daughter adopted by her before her marriage to the petitioner; that the respondent assisted these three women financially; that, contrary to the wish of the petitioner, she intended to provide liberally for them in any testamentary disposition that she might make of her extensive property; that the petitioner persisted in most cruel and vile attacks upon the moral character of these women, especially the respondent's daughter and sister; that he did this in letters written to the respondent and also in conversations with others in her presence, in public places, in hotels and restaurants In New York, and on numerous occasions at their home in Porto Rico in the presence of servants and guests who were of the highest political and social standing in the island.These statements do not appear to have been made by the petitioner in anger, but with a malicious intention of humiliating the respondent and destroying her peace of mind.The respondent testified that she had destroyed most of the letters of this nature which the petitioner had written to her.One letter is in evidence as an...