Egidi v. Egidi

• Decision Date: 03 May 1915
• Docket Number: No. 4815.,4815.
• Citation: 93 A. 908,37 R.I. 481
• Parties: EGIDI v. EGIDI.
• Court: Rhode Island Supreme Court

93 A. 908

37 R.I. 481

EGIDI

v. EGIDI.

No. 4815.

Supreme Court of Rhode Island.

May 3, 1915.

Exceptions from Superior Court, Providence & Bristol Counties; John Doran, Judge.

Suit for divorce by Ersilia Egidi against Ettore Egidi. Decree for petitioner, and defendant excepts. Exceptions overruled, and case remanded to Superior Court for further proceedings.

Anthony V. Pettine, of Providence, for petitioner. Bennie Cianciarulo, of Providence, for respondent.

BAKER, J. This is a petition for divorce from bed and board, containing a prayer for the custody of two children of the ages of five and three years, respectively, and for an allowance for the support of the petitioner and her children. The sole ground alleged in the petition is extreme cruelty. The case was heard in the superior court on the 24th and 25th days of September, 1914. At the close of the testimony in chief for the petitioner, and after all the testimony was in, the respondent moved to dismiss the case on the ground of condonation. The motions were denied, and to the denial of the last motion the respondent excepted, as well as to the decision hereinafter referred to. After the denial of the second motion the court decided in favor of the petitioner, granting her prayer for a limited divorce, awarding her the custody of the minor children, and ordering the respondent to pay her $6 each week for the support of herself and the children, and a decree to that effect was entered said September 25th. The case is before this court on respondent's bill of exceptions, setting up the two grounds of insufficiency of evidence and condonation. He does not really press the point of insufficiency of evidence, and from an examination of the transcript of the testimony in the case we are of the opinion that the decision of the trial judge as to the existence of extreme cruelty is amply sustained, so that the only question requiring consideration is that of condonation. The claim of condonation is based upon the admissions of the petitioner herself that, after signing the petition for divorce, she returned to her home and remained there three days, and that she at that time slept with her husband. The husband's claim is that she lived with him from seven to nine days. Her testimony on which the claim of condonation is based is as follows:

"62 C. Q. After you signed this paper [the petition] you went back home and lived with your husband for 10 days, didn't you? A. No, sir. 63 C. Q. How many days? A. The first time 1 signed the paper I went home and stood with him three days more. I thought he probably would be all right, but then when I saw that he kept on slapping me I went away. * * * 66 C. Q. Then after you signed the petition— A. I did that to see whether he would be good or not, but when 1 saw he kept on slapping me, then I couldn't stand it any longer. 67 C. Q. After you signed that petition you lived with your husband, is that right? A. The first time I said I have been there three days, the second time I never went. 68 C. Q. Well, how many petitions for divorce have you signed within the past six or seven months? A. That is all, only one. I think there was a letter written. * * * 74 C. Q. And at the time you signed that it was explained to you that you were asking for a separation from your husband? A. Yes, sir. 75 C. Q. Now, bear that in mind—I am talking about when you signed this paper—you went home and lived with your husband? Answer yes or no. A. Yes, sir; three days. * * * 77 C. Q. You slept with your husband? Answer yes or no. A. Yes, I slept with my husband. I don't suppose I would sleep with somebody else. 78 C. Q. You say that three days afterwards you left him? A. Yes, because he slapped me, and I couldn't stand it any longer and I left him."

In connection with this testimony these facts, as they appear from the papers in the case, may properly be noted. The petition in this ease was signed and sworn to August 4, 1914. It was filed August 5th, and citation was issued the same day. The citation was given to the sheriff August 6th and, as shown by the officer's return, served upon the respondent August 11th.

Condonation has been repeatedly defined by the courts and text-writers, but the definition as given in section 269, vol. 2, Bishop on Marriage, Divorce, and Separation, may be accepted as a satisfactory one. It is as follows:

"Section 269. Condonation is the remission by one of the married parties of an offense which he knows the other has committed against the marriage on the condition of being continually afterward treated by the other with conjugal kindness, resulting in the rule that while the condition remains unbroken there can be no divorce, but a breach of it revives the original remedy."

Certain other things relating to condonation seem to be so well settled that it is needless to cite authorities in their support. For example, the forgiveness of the act or acts complained of may be expressed or implied; the law always implies a condition that there shall be no just cause for complaint in the future; condonation is available as a defense to the charge of cruelty, but the defense is more easily avoided when set up against such a charge than to the charge of adultery; where the charge is cruelty, much less cruel treatment than would be necessary to be a good ground for divorce will suffice to avoid the defense of condonation, and a wife is more indulgently considered as to condonation than her husband, owing to her comparative helplessness and her greater dependence upon him, so that voluntary cohabitation on her part, following acts of cruelty on his part, will not always operate as a condonation to defeat a petition for divorce. In Wilson v. Wilson, 16 R. I. 124, 13 Atl. 102, where the petitioning wife lived with the respondent, "receiving him as husband," for 10 days after the last act of violence, reasons were found to exist for holding that this did not amount to a condonation of the cruelty complained of.

Two questions arise upon the quoted testimony of the petitioner and the facts stated in connection therewith: First. Do her acts after signing the petition amount to a condonation of the offense charged? Second. If so, was the condition of condonation broken by a renewal of the acts of cruelty so that the original remedy remained? As the justice of the superior court granted her petition, although the claim of condonation was made before him, his decision clearly shows that in his judgment this claim was not well founded. But whether the ground of his decision was that the conduct of the petitioner, after signing the petition, did not amount to a condonation, or that while amounting to a condonation it was forfeited as a defense by a subsequent act of cruelty it is impossible to say.

In view of the indulgence extended to wives in such cases, and in view also of the facts that the two young children needed her care; that the husband was the wage-earner; that they were poor and must of necessity have lived in restricted quarters with meager furnishings, as indicated by the small weekly allowance ordered in the decree to be paid for the support of the wife and her children; her inability to speak English, and her fairly presumable ignorance of the possible significance of her conduct in its relation to this case in returning to the home and bed of her husband—strong grounds exist for urging that such conduct did not amount to a condonation of her husband's offense. And if this be held there would be an end of the defense. On the other hand, where one has shown a belief in a charge of marital...