Milliken v. Milliken

Decision Date18 August 1978
Docket NumberNo. 76-350-A,76-350-A
Citation120 R.I. 762,390 A.2d 934
PartiesWilliam Conte MILLIKEN v. Elizabeth Ellen MILLIKEN. ppeal.
CourtRhode Island Supreme Court
OPINION

WEISBERGER, Justice.

This is a petition for an absolute divorce brought pursuant to G.L.1956 (1969 Reenactment) § 15-5-1, praying that the marriage between the parties be annulled. It was denied by a Family Court justice after finding that the marriage was not procured by fraud as alleged in the petition. The case is before us on the petitioner William Milliken's appeal pursuant to § 14-1-52 as amended by P.L.1972, ch. 169, § 28 from the decree of the Family Court justice. 1

This action was previously before us in 1967 on the present petitioner's appeal from the granting of respondent's motion to dismiss the original divorce petition, F.C. 2001-AP, brought in 1963. Milliken v. Milliken, 101 R.I. 572, 225 A.2d 661 (1967). The only question before us in that case was whether the trial justice was entitled to pass on the credibility of petitioner's testimony before respondent had rested her case. The merits were not then in issue, and any conclusions in that decision on any other issue are not now controlling before us. Lancia v. Grossman's of Rhode Island, Inc., 100 R.I. 407, 216 A.2d 517 (1966). We remanded the case to the Family Court for further proceedings in accordance with our opinion on January 20, 1967.

The case was discontinued on May 19, 1967, and a new petition, F.C. 1023-EP, which forms the basis of the present appeal, was substituted for the original petition on May 23, 1967. In it petitioner has included the same grounds for divorce as in his first petition and alleges, among other things, that the marriage was procured by fraud in that respondent concealed her pregnancy which resulted from relations with some man other than himself. After hearing all the evidence in the case, on March 5, 1976, the trial justice entered a decree in which he denied and dismissed the petition for divorce as well as a cross-petition for divorce brought by respondent.

The record before the trial justice reveals the undisputed testimony that petitioner William Milliken and respondent Elizabeth Milliken, then 23 and 24 years of age respectively, drove to Willimantic, Connecticut, on September 2, 1963, and were married there before a justice of the peace. Elizabeth subsequently delivered two children, William, Jr. (first child), born on September 9, 1963, and Christopher (second child), born on April 20, 1965. She testified that both children were the children of petitioner. William, on the other hand, testified that he never at any time had had intercourse with Elizabeth, either before or after their marriage, and that the birth of the first child 7 days after their marriage was a complete surprise to him, as Elizabeth did not appear pregnant even up to the last few days before the child was born. This testimony was corroborated by Theresa Milliken, petitioner's mother, and Dr. Matthew Rossi, who administered a premarital blood test to the couple 12 days before the birth of the child. It was contradicted by Elizabeth's mother who testified that in the summer of 1963 her daughter was obviously pregnant, and by Elizabeth's girlfriend, who testified that on Labor Day weekend, a few days before the child was born, Elizabeth appeared pregnant.

The trial justice rejected the testimony of petitioner and his witnesses and found as a fact that it was "patently obvious" that in the summer of 1963 Elizabeth appeared pregnant and that the child born of that pregnancy was petitioner's child. On the other hand, in denying Elizabeth's cross-petition for divorce, he found that William was not the father of her second child because he was sterile at the approximate time of the child's conception.

On appeal, petitioner contends that the trial justice misconceived the evidence in making the inconsistent findings that William was physically able to be the father of the first child, but not the father of the second child because he was sterile. We are well aware of our long-standing rule that findings of a trial justice will not be disturbed unless clearly wrong, Matracia v. Matracia, R.I., 378 A.2d 1388 (1977), "(n)evertheless, this proposition is subject to the qualification that such deference is not due when the trial justice has misconceived or overlooked material evidence." In re Adoption of a Minor Child, 109 R.I. 443, 452, 287 A.2d 115, 119 (1972). In view of our agreement with petitioner that the trial justice has misconceived the evidence in this case on the issue of the petitioner's sterility, it is unnecessary...

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8 cases
  • Gott v. Norberg
    • United States
    • Rhode Island Supreme Court
    • 8 Julio 1980
    ...as trier of fact unless he articulated reasons for rejecting it. Correia v. Norberg, R.I., 391 A.2d 94, 98 (1978); Milliken v. Milliken, R.I., 390 A.2d 934, 936 (1978). The administrator, however, rejected the taxpayers' evidence without discussion. He also disregarded the holding in Lewiso......
  • Pulawski v. Pulawski, 80-497-A
    • United States
    • Rhode Island Supreme Court
    • 15 Julio 1983
    ...justice erred in ignoring uncontradicted evidence without giving a specific reason for his rejection thereof. See Milliken v. Milliken, 120 R.I. 762, 390 A.2d 934 (1978); Beaupre v. Dynachem Corp., 113 R.I. 612, 324 A.2d 621 (1974); Peloso v. Peloso, Inc., 107 R.I. 365, 267 A.2d 717 In ligh......
  • State v. Duggan
    • United States
    • Rhode Island Supreme Court
    • 9 Mayo 1980
    ...state his reasons when rejecting evidence that is on its face apparently free from contradiction and inconsistency. Milliken v. Milliken, R.I., 390 A.2d 934, 936 (1978). The trier of fact may, however, reject testimony containing "inherent improbabilities or contradictions which, alone or i......
  • Kristen B., In re, 88-223-A
    • United States
    • Rhode Island Supreme Court
    • 27 Abril 1989
    ... ... In re Armand, 433 A.2d at 962; In re LaFreniere, 420 A.2d at 84; Milliken v. Milliken, 120 R.I. 762, 764, ... 390 A.2d 934, 935 (1978). Additionally, we have stated that this court shall examine the record to determine ... ...
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