Rostron v. Rostron

• Decision Date: 25 May 1928
• Docket Number: No. 6499.,6499.
• Citation: 142 A. 162
• Parties: ROSTRON v. ROSTRON.
• Court: Rhode Island Supreme Court

142 A. 162

ROSTRON

v. ROSTRON.

No. 6499.

Supreme Court of Rhode Island.

May 25, 1928.

Exceptions from Superior Court, Providence and Bristol Counties; Arthur P. Sumner, Judge.

Suit by Wilberforce Rostron against Florence J. Rostron for divorce. From an adverse decision denying and dismissing the petition, petitioner brings exception. Exception sustained, and respondent ordered to show cause why cause should not be remitted with direction to grant the petition.

Woolley & Blais and Clarence N. Woolley, all of Pawtueket, for petitioner.

RATHBUN, J. This is a petition for divorce brought by a husband against his wife. The grounds alleged are extreme cruelty and desertion for a period of more than five years. The case is before us on the petitioner's exception to the decision of the trial justice denying and dismissing the petition.

The citation to give notice of the petition and also a citation giving notice that depositions would be taken before a specified master in chancery were duly 'served on the respondent by a disinterested person at Blackburn, England. Before the taking of depositions said master received a letter from the respondent's solicitors in England stating, in substance, that in January, 1922, an order was entered in criminal proceedings in Englaad directing the petitioner to pay to his wife 12 shillings and sixpence a week for the support of herself and a minor child of the parties; that the order was entered on a complaint alleging desertion, extreme cruelty, and neglect to maintain; that he complied with the order only until the end of the following June and that a sum of f175 was due her under said order. Said master, at the time specified in said citation, took the depositions of the petitioner and three witnesses in his behalf. In compliance with a request from the petitioner's counsel, the letter from said solicitors and a copy of a letter from the master to said solicitors in reply, advising them to secure counsel here if they desired to contest the petition, were annexed to the depositions. There was no entry of appearance for the respondent and the cause was heard as an uncontested petition.

At the hearing the depositions were read and the petitioner gave oral testimony. The petition was denied and dismissed by the justice who heard the same, not because the petitioner had failed to prove his allegations of extreme cruelty and desertion, but on the ground that "it would seem that the petitioner does not come into court with clean hands." The rescript embodying the decision of said justice contains the following:

"Among the papers in the case appeared a communication from a firm of solicitors in Blackburn, England, where service was made upon the respondent. The solicitors upon service of the subpoena wrote to the master in chancery who took the depositions, stating that the respondent, Mrs. Rostron, had obtained an order against her husband before the justices of the county for the maintenance of herself and minor child, wherein he was ordered to pay to his wife 12 shillings sixpence a week for their maintenance, and that the ground upon which the order was given was that he had been guilty of persistent cruelty to his wife, had willfully neglected to maintain her, and had forced her to leave him; that he had paid under this order from January, 1922, until the end of June of that year and at the present time was owing the respondent a sum exceeding f175. They also stated that Mrs. Rostron, the respondent, is unable to make the journey to America, not being sufficiently well and having no means. * * * Mr. Rostron admits the entering of this order and his failure to pay the allowance under it. It would seem to follow that the order was entered for good and sufficient reasons and under charges that he did not choose to fight or disclaim; that he left his wife penniless in England with a minor child and came to this country to escape the effect of the order of the English court. Under these circumstances, it would seem that the petitioner does not come...