Donofrio v. Donofrio

• Court: Washington Supreme Court
• Writing for the Court: [167 Wash. 81] PARKER, J.
• Citation: Donofrio v. Donofrio, 167 Wash. 80, 8 P.2d 966 (Wash. 1932)
• Decision Date: 07 March 1932
• Docket Number: 23448.
• Parties: DONOFRIO v. DONOFRIO.

8 P.2d 966

167 Wash. 80

DONOFRIO v. DONOFRIO.

No. 23448.

Supreme Court of Washington

March 7, 1932

Department 1.

Appeal from Superior Court, King County; Malcolm Douglas, Judge.

Action by James Donofrio against Mary Donofrio, in which defendant filed a cross-complaint. From a judgment awarding defendant an interlocutory decree of divorce, plaintiff appeals.

Affirmed.

Morris B. Sachs and Colvin & Rhodes, all of Seattle, for appellant.

P. O D. Vedova, of Seattle, for respondent.

PARKER, J.

The plaintiff, James Donofrio, commenced this action in the superior court for King county seeking a decree annulling the marriage which was duly solemnized between him and the defendant, Mary Donofrio. As ground for such relief the plaintiff alleged that at the time of their marriage she was the wife of another man then living, which fact was then unknown to him. She answered by denial of her being the wife of another man at the time of their marriage; and by her cross-complaint alleged that she was lawfully married to the plaintiff, and alleged that he was guilty of cruel treatment towards her rendering her life burdensome; and prayed for a decree of divorce from him and for such property or alimony award against him as to the court might seem just. The cause proceeded to trial upon the merits and resulted in findings and judgment denying to the plaintiff the relief prayed for by him; and awarding to the defendant an interlocutory decree of divorce from the plaintiff, including an award to her against him in the sum of $1,000 in lieu of other property or alimony award. From this disposition of the case in the superior court, the plaintiff has appealed to this court.

We think the following is a sufficient summary of what appears to us, and evidently what appeared to the trial court, to be the outstanding, controlling facts of the case: On October 23, 1925, the marriage of appellant to respondent was duly solemnized according to law in the city of Seattle by a justice of the peace of King county. This is conceded. This is also evidenced by record and certificate in the manner required by law. At that time appellant was a widower about sixty-five years old. At that time respondent was about fifty-five years old. They are both Italians, both having been born in Italy. Both have lived in King county since some time prior to the year 1915. Respondent testified positively that she was never married to any one but appellant, though she freely admitted that she lived with another man, an Italian, as his wife, for a number of years Before and since coming to the United States and to King county, up to about the year 1920, when he left her and returned, as she was led to believe, to Italy. She never saw him thereafter. She testified that he had repeatedly promised to marry her, but that he never did marry her. She let her acquaintances believe that she was married to him. Her justification for this and her continued association with him was, as she testified, 'for the shame that I had that I had a son,' referring to a son still living, the fruit of that association. After that man went away, she says, she heard that he had died, though she seems to have heard other rumors of his being alive, as some of her acquaintances did, though she did not know of his whereabouts in Italy. There was no evidence produced upon the trial pointing to her marriage to that man other than her own admissions and her living with him for a number of years prior to about 1920. Just when appellant learned, as he claims, of her former association and her marriage to the man who abandoned her, is not made plain by the evidence, but it was within two years after their marriage in 1925. The evidence warrants the conclusion that appellant continued to live with respondent as his wife after receiving such information. About six months Before the trial of this action, which occurred in April, 1931, respondent finally left appellant because, as she claims, of his cruel treatment of her. The evidence abundantly supports the conclusion that she was fully justified in leaving appellant because of such cruelty. Respondent is a very illiterate wroking woman. She can neither read nor write. She knows little else than hard labor in market gardening, in factory and in her home. She labored hard in one or the other of these vocations constantly during the whole of the approximately five years she lived with appellant, the fruits of her labor contributing to the support of both of them. Appellant is a man of some business experience, having acquired real property of...