De Robbio v. De Robbio, 697.

• Decision Date: 02 July 1940
• Docket Number: No. 697.,697.
• Citation: 14 A.2d 19
• Parties: DE ROBBIO v. DE ROBBIO.
• Court: Rhode Island Supreme Court

14 A.2d 19

DE ROBBIO

v. DE ROBBIO.

No. 697.

Supreme Court of Rhode Island.

July 2, 1940.

Appeal from Superior Court, Providence and Bristol Counties; Charles A. Walsh, Judge.

Proceeding by Maria De Robbio against Joseph De Robbio to set aside decrees entered in a divorce case.

From an adverse decree, respondent appeals.

Appeal of respondent denied and dismissed, decree affirmed, and cause remanded for further proceedings.

See, also, 200 A. 480.

Luigi DePasquale and Arthur Falcone, both of Providence, for petitioner.

Frank H. Wildes, of Providence, for respondent.

BAKER, Justice.

This is an appeal by the respondent from a decree of the superior court setting aside two decrees, one interlocutory and the other final, entered in a divorce case in which the present parties were reversed. The decree now before us was entered following a hearing on an original petition filed in that court by the petitioner herein seeking the relief granted in such decree.

The controlling question in the cause at bar is essentially one of fact. Such question, under the petition and the evidence, is as follows: Did the respondent by false representations and conduct willfully and intentionally induce the petitioner, who innocently relied upon such representations and conduct, to refrain from answering and defending a divorce petition which the respondent had brought against her, with the result that the respondent induced the superior court to enter, first, an interlocutory decree, and then a final decree in what was apparently an uncontested divorce petition?

The following facts are undisputed: The parties were married on June 26, 1926, and have two children. On October 27, 1936, the respondent filed a petition for an absolute divorce on the grounds of extreme cruelty and gross misbehavior, the citation in that case being served on the petitioner herein on October 29, 1936. That petition was heard by the superior court on oral testimony, being uncontested, on December 28, 1936, and a decision was rendered in favor of the husband, who also was awarded custody of the two children. An interlocutory decree was accordingly entered on December 29, 1936, and a final decree of divorce on July 1, 1937. While the proceeding above referred to was pending the parties lived with their children in the same home with no apparent change of relations between them, and they continued so to live until November 11, 1937, when, according to the wife, she first learned that her husband had secured a final decree in the divorce case. Shortly thereafter she brought the present petition.

She testified that when the citation in the divorce case was served upon her in October, 1936, she confronted her husband with that fact and asked for an explanation. Her testimony in this connection was: "When he (the husband) came home at night I says to him, 'What is the idea of this?' He says, 'I had to start it because I am in kind of a jam but forget all about it because it is not going through'." Relying upon this statement made by her husband, she, according to her testimony, dismissed the divorce proceeding from her mind.

She further testified that thereafter she continued to look out for her home and children as she had always done; that she also did outside work whenever she could find employment; and that her relations with her husband were not only friendly but intimate until November 11, 1937, when she first learned of the alleged fraud that he had practiced on her in connection with the divorce case. Her testimony as to what occurred on the date last mentioned is as follows. As her husband was leaving the house that evening she said to him: "What, are you going to another meeting tonight?' He says, 'It is none of your business', he says, 'but I am going out with a girl and am going to marry her in January because I got a divorce from you.' I says, 'Divorce?' I said, 'Don't come into this house again.'"

The respondent admits that in October, 1936, his wife asked him what was the meaning of the divorce citation which had just been served upon her. The pertinent part of his testimony on this point follows: "When I came home that night she said, 'I got that present from you.' I asked her what she meant and she showed me the paper. She said I had an awful nerve accusing her of gross misbehavior because she thought, from what she talked, that gross misbehavior meant adultery. So I explained to her I did not accuse her of that. So I explained to her what gross misbehavior meant. I said, 'I caught you going out with other men and told you to stop. You told me to go ahead and get a divorce and that is what I did.' That is all that was said that night." He further testified that at this time he was in some "business trouble", but denied that he told his wife that he brought the divorce petition because he was in a jam, and that the divorce case would not go through.

The respondent does not deny that he continued to live with his family from October, 1936, to November 11, 1937, and that during all this time his wife attended to the household duties, although, according to his testimony, she knew that he was getting a divorce from her. He testified, however, that their relations were not...