Botelho v. Botelho, 3073

• Court: Rhode Island Supreme Court
• Writing for the Court: ROBERTS
• Citation: Botelho v. Botelho, 192 A.2d 5, 96 R.I. 379 (R.I. 1963)
• Decision Date: 18 June 1963
• Docket Number: No. 3073,No. 10498,3073,10498
• Parties: Betty Jean BOTELHO v. Ernest Stephen BOTELHO. Equity Ex.

Page 5

192 A.2d 5

96 R.I. 379

Betty Jean BOTELHO v. Ernest Stephen BOTELHO.

Equity No. 3073.

Ex. No. 10498.

Supreme Court of Rhode Island.

June 18, 1963.

Maurice L. Dannin, Newport, for petitioner.

Moore, Virgadamo, Boyle & Lynch, Salvatore L. Virgadamo, Newport, for respondent.

ROBERTS, Justice.

This is a petition for an absolute divorce brought by a wife on the grounds of extreme cruelty and gross misbehavior. Subsequent to the filing of this petition the respondent filed a motion in the nature of a cross petition seeking a divorce from the petitioner on the ground of gross misbehavior. The petition and the cross petition were heard by a justice of the family court who thereafter, on November 26, 1962, entered a final decree denying and dismissing the petition and the cross petition. The petitioner has brought the matter to this court for review both by way of a bill of exceptions and an appeal. The decision of the family court being embodied in a final decree in order to give it effect, it is properly brought to this court on an appeal. Tobin v. Tobin, 70 R.I. 362, 371, 38 A.2d 756. For this reason the petitioner's bill of exceptions is dismissed pro forma.

The record discloses that the parties have been married for about eighteen years and are the parents of four minor children. It is clear that their marital relationship has been marred by persistent quarreling over family matters and by the attentions each paid to other persons of the opposite sex. There is an abundance of evidence tending to establish that petitioner on numerous occasions has been physically assaulted by respondent and that she has been subjected to substantial verbal abuse and harassment over the years.

There is in the record also a substantial amount of evidence concerning the relationship of petitioner with Angelo Pacheco, hereinafter referred to as Pacheco. Without intending to engage in an extended discussion thereof, it discloses that petitioner for some years has know Pacheco and for some time prior to this suit had been almost continuously in his company, usually over the strong protestations of respondent. The petitioner does not deny her acquaintanceship with this man or that she had been in his company on many occasions but did testify that it was merely a friendly acquaintanceship and that no improper or immoral actions had ever occurred. It is not disputed that certain of the conduct of respondent alleged to constitute cruelty arose out of petitioner's being with Pacheco.

In his rescript the trial judge rejected the contentions of petitioner regarding her acquaintanceship with Pacheco, describing it in his own language as being for some other purpose than 'mere friendship.' He specifically stated that the conduct of petitioner provoked further discord between the parties and that she did not come into court with clean hands. He further stated that in his judgment there was evidence of connivance among the parties to procure the divorce, conduct which the court would not tolerate. He then denied and dismissed both the petition and the cross petition.

It is clear from an examination of his rescript that the trial justice denied and dismissed the petition on the ground that petitioner had failed to sustain the burden of proving that she, as a petitioner for an absolute divorce, was on her own part free from fault. Lannon v. Lannon, 86 R.I. 451, 136 A.2d 608, 137 A.2d 529. It has long been settled that a finding made by a justice of the superior court sitting in domestic relations would not be disturbed by this court on appeal unless it was clearly wrong. Castelli v. Castelli, 82 R.I. 232, 107 A.2d 284. This rule now has application to findings made by justices of the family court.

In the instant case petitioner has not persuaded us that the trial justice either overlooked or misconceived evidence material to the issue of her own freedom from fault. The record discloses that he weighed the evidence and in passing upon the credibility of the witnesses had the opportunity to observe them as they testified, an advantage which we do not have. In such circumstances we are constrained to conclude that in the state of the evidence here the finding of the trial justice was warranted, and he has not been shown to have been clearly wrong therein.

The petitioner, as we understand her, argues that the trial justice misconceived the probative thrust of the evidence adduced upon the issue of her own freedom from fault. She contends that there is nothing in the evidence that warrants a...