Root v. Root, 7718.

• Citation: 190 A. 450
• Decision Date: 01 March 1937
• Docket Number: No. 7718.,7718.
• Parties: ROOT v. ROOT.
• Court: United States State Supreme Court of Rhode Island

190 A. 450

ROOT

v. ROOT.

No. 7718.

Supreme Court of Rhode Island.

March 1, 1937.

Exceptions from Superior Court, Providence & Bristol Counties; Mortimer M. Sullivan, Judge.

Action for divorce by Francis S. Root against Florence M. Root. To review decision for petitioner, respondent brings exceptions.

Exception overruled, and case remitted for further proceedings.

Taft & Beane and James L. Taft, all of Providence, for petitioner.

Frank Barnbrook, of Providence, for respondent.

MOSS, Justice.

This is a petition for divorce on the ground, stated in General Laws 1923, c. 291, § 3, that the parties had "lived separate and apart from each other for the space of at least ten years." After a decision in the superior court for the petitioner on this ground, the case is now before us on the respondent's bill of exceptions to this decision.

The evidence shows clearly that when the petition was filed the parties had lived separate and apart for more than ten years and there is no dispute as to this fact.

Under the statutory provision above cited, as decided in many cases, such fact is a ground upon which the superior court "may in its discretion enter a decree divorcing the parties from the bond of marriage." One of the two reasons which the respondent has urged before us for a reversal of the decision below is that by reason of special facts shown by the evidence in this case the decision was an abuse of his discretion by the trial justice.

At the time of the filing of the petition the respondent was actually residing in New Mexico, where she had been living for a number of years, and was not a domiciled inhabitant of this state in her own right. Therefore the following provision, being the first part of General Laws 1923, c. 291, § 10, applies to this case: "No petition for divorce from the bond of marriage shall be granted unless the petitioner shall have been a domiciled inhabitant of this state and have resided therein for the period of two years next before the preferring of such petition." The other reason which the respondent has urged before us for a reversal of the decision below is that the finding by the trial justice that the petitioner had met the requirement of this provision was not supported by the evidence.

As to the former of these two reasons, the undisputed evidence shows clearly the following facts: The parties, because of serious disagreements between them, separated in December, 1924, and had not lived together at all between that time and the filing of the petition in this case on January 15, 1935. They had not even met each other during that period except for a brief and apparently casual meeting in 1927, when a daughter of theirs was staying at a camp in the state of New York, and he called there to get the daughter and take her to Boston, and found his wife also there. During that period there had been no effort made by either of them to effect a reconciliation, and he testified in the case that there was no hope of such reconciliation.

Because of these facts and because we find in the evidence no proof of any fact or facts of a kind which this court has ever held to prevent a trial justice from exercising his discretion to grant a divorce on the ground alleged in the petition in the instant case, we hold that the trial justice here did not abuse his discretion in granting this petition.

As to the question whether the petitioner had been a domiciled inhabitant of this state and had resided therein for the period of two years next before the preferring of his petition, the answer is not so easy. Certain facts shown by the evidence have been urged as being opposed to the affirmative finding of the trial justice. About three or four years before December 9, 1932, the date when the petitioner claims to have become a domiciled inhabitant of the city of Providence in this state, he had lived continuously in Brighton, a suburb of the city of Boston, Mass., being in the employment, as a traveling salesman of power, of the New England Power Company, or a subsidiary company, having its main office in Boston, by which he has been employed ever since in the same capacity, his territory being Massachusetts, New Hampshire, Vermont, and Rhode Island.

In the spring of 1930 he wrote a letter to the respondent, in which he said that his lawyer had advised him that he could undoubtedly get a divorce, though strongly contested, by taking up residence for several months in another state, the one in mind being presumably Nevada, but that it would cost him a good deal...