Milliken v. Milliken

• Decision Date: 20 January 1967
• Docket Number: No. 3254,No. 10767,10767,3254
• Citation: 225 A.2d 661,101 R.I. 572
• Parties: William Conte MILLIKEN v. Elizabeth Ellen MILLIKEN. Ex. &c. Equity
• Court: Rhode Island Supreme Court

Page 661

225 A.2d 661

101 R.I. 572

William Conte MILLIKEN v. Elizabeth Ellen MILLIKEN.

Ex. &c. No. 10767.

Equity No. 3254.

Supreme Court of Rhode Island.

Jan. 20, 1967.

[101 R.I. 578] Sydney I. Resnick, Providence, for petitioner.

A. Anthony Susi, Providence, for respondent.

OPINION

POWERS, Justice.

This is a petition for an absolute divorce brought on the authority of G.L. 1956, § 15-5-1. It was heard by a family court justice who granted the respondent's motion to dismiss after the petitioner had rested but the respondent had not. The case is before us on both the petitioner's bill of exceptions to and his appeal from the granting of the respondent's motion to dismiss.

This dual posture resulted from petitioner's uncertainty as to the proper procedure for review in this court. At that time it was by way of a bill of exceptions but when argued in this court was by way of an appeal pursuant to the provisions of now G.L. 1956, § 14-1-52, as amended, effective January 10, 1966. We deem it advisable to treat the cause as an appeal under the aforecited statute and therefore dismiss the bill of exceptions pro forma. See Legare v. Urso, R.I., 216 A.2d 506.

The petitioner who is twenty-six years of age testified that he met respondent in 1962, saw her as well as other girls off and on until, one day in mid-August 1963, he and respondent drove to Willimantic Connecticut, where they obtained a marriage license. It is petitioner's testimony that he thought they were merely out for a ride and only incidentally landed in Connecticut where, what he professed was a surprise to him, respondent told him they were going to get a license.

Two weeks later, Labor Day September 2, 1963, in the company of another couple, petitioner and respondent revisited Willimantic and were married. Again, petitioner testified, they were just out for a ride and the proposal that they should use the occasion to be married came as a complete surprise. The accompanying couple served as witnesses.

The petitioner related to the court how, after returning from the marriage ceremony, he went to his mother's home to live. The respondent went to her apartment and although the parties subsequently lived under the same roof for a brief period he claimed the marriage was never consummated. Indeed, petitioner insisted he never had sexual relations with respondent at any time.

It appears, however, that petitioner called on his wife at her apartment, helping out in little ways and went there September 9, 1963, one week after the wedding, to hang 'like a picture box up on the wall.' There, petitioner testified, he found a note on the kitchen table requesting him to go to the Providence Lying In Hospital. Arriving there he asked to see his wife and learned, again to his professed surprise, that respondent had delivered a male child who she informed him was his son.

Continuing, petitioner related how he visited respondent at the hospital during her confinement and was there on the day she was discharged to help her in taking the infant to respondent's apartment. Later in mid-October he, his wife and the child lived at the home of respondent's mother for some two weeks where, petitioner testified, he slept in the same room with respondent but on the floor. About the end of October petitioner and his wife moved to their own apartment where they resided together until he left on the day before Christmas. The petitioner insisted that while so residing he slept at the foot of the bed in which respondent slept. In referring to this latter circumstance petitioner likened himself to 'a faithful dog.' Several times during his testimony he referred to himself as respondent's 'puppet.'

On December 31, 1963 he brought the instant petition for an absolute divorce in the nature of an annulment on the ground that the marriage was voidable by reason of respondent's concealing her pregnancy which he alleged resulted from relations with some man other than himself.

In addition to that offered by petitioner, testimony was given by his mother and by a friend. The latter's testimony was intended to corroborate that of petitioner and his mother on the issue of petitioner's two-year residence in this state as required by § 15-5-12.

Additionally petitioner's mother attemptde to corroborate her son's version of a casual relationship with respondent as completely lacking in intimacy. It is also the thrust of her testimony that respondent's pregnancy was not apparent on close scrutiny as late as the day before the child was born.

At the close of petitioner's case respondent, without resting, moved that the petition be denied and dismissed. In granting this motion the trial justice stated in pertinent part: 'The things I must consider are the evidence, the attitudes and the credibility of the parties. The words that were testified to would lend themselves to the denying of the motion, and would support a petition for divorce, if these words could be taken and accepted by the Court as completely credible. I find, however, that they strain, even overstrain, my credibility.'

Continuing, the court noted that petitioner first testified that after seeing the child he reported to his mother that he was a father. At this point in the trial petitioner's mother indulged in some outburst for which she was ordered from the courtroom and petitioner then changed his story.

Apropos thereof, the...