Jackson v. Jackson .

• Decision Date: 20 July 1944
• Docket Number: Nos. 8636, 8637.,s. 8636, 8637.
• Citation: 38 A.2d 637
• Parties: JACKSON v. JACKSON (two cases).
• Court: Rhode Island Supreme Court

38 A.2d 637

JACKSON

v.JACKSON (two cases).

Nos. 8636, 8637.

Supreme Court of Rhode Island.

July 20, 1944

Exceptions from Superior Court, Providence and Bristol Counties; Alberic A. Archambault, Judge.

Suits for divorce by Dorothy Elizabeth Jackson against Ernest Clifford Jackson, and by Ernest Clifford Jackson against Dorothy Elizabeth Jackson. Judgments denying the wife's petition and granting the husband's petition, and the wife brings exceptions.

Exception to judgment denying the wife's petition overruled and case remitted, and exception to judgment granting the husband's petition sustained, with leave to petitioner to appear before the Supreme Court and show cause why the case should not be remitted with direction to deny and dismiss the petition.

Henry E. Crowe and Thomas Hetherington, both of Pawtucket, for Dorothy Elizabeth Jackson.

Earle B. Arnold, of Providence, for Ernest Clifford Jackson.

FLYNN, Chief Justice.

These two petitions for divorce were tried together in the superior court and resulted in decisions granting the petition of Ernest C. Jackson, the husband, and denying that of his wife, Dorothy E. Jackson, and ordering certain other incidental relief. They are before us solely on the latter's exceptions to the denial of her petition and to the granting of that of her husband.

The wife's petition, filed July 22, 1943, prayed for a divorce from bed and board on the grounds that her husband had been guilty of extreme cruelty and of gross misbehavior and wickedness repugnant to and in violation of the marriage covenant in that he had improperly associated himself with women other than his wife. The husband's petition, filed July 23, 1943, prayed for an absolute divorce on the ground that his wife had been guilty of extreme cruelty and of gross misbehavior and wickedness repugnant to and in violation of the marriage covenant in that she had refused sexual intercourse without the use of contraceptives.

In addition to the decisions on the merits, above referred to, the wife was given custody of the minor child of the parties, the use of half of the furniture and was ordered to vacate by a certain date the house in which the parties lived, leaving to further proceedings in equity or to agreement the settlement of their financial interests in the real estate and personal property, including the poultry business operated on those premises. The husband was ordered to pay an allowance of $15 weekly for the support of his minor child and each party was restrained from interfering with or molesting the other.

The parties were married April 8, 1933, and lived continuously in Rhode Island for over two years next before the filing of these petitions. They have one child, Ernest C. Jackson, Jr., who was ten years of age. All lived in a house in the town of North Smithfield, the deed to which stood in the names of both parties and both apparently contributed towards its purchase and maintenance. The husband conducted a fairly large poultry business on the premises, using portions of the house and garage for certain purposes incidental thereto. In addition he worked in the Greenville Mill and did other repair work at times. As a hobby he did experimental work with radios. The wife, prior to her illness, worked in another part of the same mill and in addition she managed the household.

Considering the wife's petition first, the evidence on her behalf showed substantially only one incident when she was subjected by her husband to any physical violence. No serious bodily injuries resulted therefrom nor did she become fearful or apprehensive of injury because of that incident or because of another, when she testified that her husband threatened to kill her. There was no evidence to corroborate the latter and none that her husband's conduct at any time had caused injury to her health. In such circumstances the trial justice was not wrong in denying her petition so far as based on the ground of extreme cruelty.

She relied, however, almost entirely on her claim and evidence that her husband was guilty of gross misbehavior and wickedness repugnant to and in violation of the marriage covenant in his associations with one “Mrs. Hambly,” who also testified. What constitutes this ground for divorce under the statute has been described in Stevens v. Stevens, 8 R.I. 557, Walker v. Walker, 38 R.I. 362, 95 A. 925, and Rainey v. Rainey, 57 R.I. 426, 190 A. 27. In those cases this court has held that this statutory ground contemplated that the conduct complained of must have some character of licentiousness or brutality allying it in its moral attributes with adultery or extreme cruelty.

The evidence on behalf of the wife, if believed, tended to support her suspicion that her husband had been associating with the above-mentioned Mrs. Hambly, particularly at a camp on a lake in Rhode Island and again at the place where Mrs. Hambly lived, in a manner that suggested misconduct and that was in any event unbecoming a married man. Some but not all parts of her testimony were corroborated by Mrs. Carpenter, one of her friends. The material portions of this evidence, however, were positively denied by both her husband and Mrs. Hambly; and other apparently disinterested witnesses testified to certain facts which were wholly inconsistent with the wife's claims and were corroborative of the testimony of her...