Santos v. Santos

• Decision Date: 30 July 1952
• Citation: 80 R.I. 5,90 A.2d 771
• Parties: SANTOS v. SANTOS. Ex. 9275.
• Court: Rhode Island Supreme Court

Page 771

90 A.2d 771

80 R.I. 5

SANTOS v. SANTOS.

Ex. 9275.

Supreme Court of Rhode Island.

July 30, 1952.

Raymond A. Thomas, Providence, for petitioner.

Respondent not represented.

FLYNN, Chief Justice.

This is a petition by a husband for an absolute divorce alleging that the respondent wife was guilty of extreme cruelty, of gross misbehavior and wickedness repugnant to and in violation of the marriage covenant, and also that the marriage was originally void or voidable. The case was heard by a justice of the superior court where notwithstanding personal service on respondent the case was unanswered and uncontested by her. At the conclusion of all the evidence for petitioner the trial justice rendered a decision denying and dismissing the petition on all grounds, and the case is before us on petitioner's bill of exceptions to such decision.

The evidence shows that petitioner was nineteen years of age and a lifelong resident of Bristol, Rhode Island; that he met respondent in this state and after about a month's acquaintance went to Utica, New York, where they were married on May 5, 1951; and that the parties returned immediately to live in Bristol at the home of petitioner's mother.

The petitioner testified that through no fault of his the marriage was never consummated; that on the day of marriage respondent refused to have normal sexual intercourse and wanted to engage only in unnatural intercourse; that believing her to be ill he took her to a Dr. Clark, who after examining respondent advised petitioner it would be better to obtain a divorce; and that after three days without consummation of the marriage or change in respondent's attitude she wilfully left him and went to live with a girl friend of questionable reputation.

There was general testimony that 'everybody else knows' the doubtful reputation of respondent and the girl with whom she had lived before her marriage, and also of another girl with whom she lived after leaving petitioner. While that testimony was mere hearsay it was introduced without objection and is not inconsistent with evidence of petitioner relating to respondent's conduct. Apparently she made no admissions as to any facts relating to the period prior to the marriage, but after she left petitioner she told his sister-in-law, who testified, that she felt it was best for him to get his divorce.

The petitioner further testified that the father of one of the girls with whom respondent had preferred to live was willing to testify concerning the conduct and reputation of respondent and of his own daughter, but he was not called as a witness. There is also testimony concerning a letter which apparently was written by respondent in which she professed and preferred love for one of these girl friends.

The trial justice found on this meager testimony that petitioner had not presented sufficient evidence of extreme cruelty. From our examination of the transcript we agree with that conclusion. While extreme cruelty may be established without necessarily showing physical force or battery, nevertheless the evidence must establish conduct or acts of cruelty which were intentional and resulted in an impairment of the bodily or mental health of the injured party, or at least would inevitably lead to such injury to that party's health. Jackson v. Jackson, 70 R.I. 333, 38 A.2d 637; Bastien v. Bastien, 57 R.I. 176, 189 A. 37; McKeon v. McKeon, 54 R.I. 163, 170 A. 922. We find no such evidence in the instant case and therefore the trial justice ruled correctly on that ground.

The second ground alleges that respondent had been guilty of 'gross misbehavior and wickedness, repugnant to and in violation of the marriage covenant, in that she has illicitly associated with other women * * *.' As the trial justice observed, the case is unusual in that such a charge ordinarily involves reprehensible conduct of a party with a member of the opposite sex. However, on the basis that conceivably facts might be shown to constitute licentious conduct akin in morals to adultery, the trial justice assumed that petitioner had the right to a divorce if he could support this ground with legal evidence. But he found that petitioner had presented only testimony creating a suspicion in place of proper and competent evidence of facts from which such licentious and immoral conduct could be inferred. Therefore he denied the petition on that ground.

No case has been presented by petitioner and we have found none in which that ground has been held to include a relationship between a respondent wife and another person of her own sex of the kind apparently suspected or indicated in the instant case. However, we have held that this ground, under G.L.1938, chap. 416, § 2, should be interpreted in the light of the preceding grounds enumerated in that chapter; and that to support such ground the conduct must be shown to have some character of licentiousness or brutality allying it in its moral attributes with adultery or extreme cruelty. Walker v. Walker, 38 R.I. 362, 95 A. 925; Rainey v. Rainey, 57 R.I. 426, 190 A. 27. Therefore assuming, as did the trial justice, that this ground under the statute conceivably may contemplate the kind of conduct that was suspected, we cannot say that the trial justice was clearly wrong in holding in effect that such necessary fact had not been established by the same convincing evidence as is required in the case of other grounds in divorce proceedings. In our opinion the trial justice was not clearly wrong in denying the petition on that ground.

The final ground alleged by petitioner is that the marriage was originally void or voidable under G.L.1938, chap. 416, § 1. The trial justice expressed his view that the...