Sargent v. Sargent, 10063
| Decision Date | 01 December 1961 |
| Docket Number | No. 10063,10063 |
| Citation | 175 A.2d 551,93 R.I. 359 |
| Parties | Tomies Calvin SARGENT v. Frances C. SARGENT. Ex. |
| Court | Rhode Island Supreme Court |
Gorham & Gorham, John Gorham, Providence, for petitioner.
No appearance for respondent.
This is a petition for divorce, the grounds alleged therefor being willful desertion and gross misconduct. No appearance was entered by or in behalf of the respondent, it appearing from the record, however, that the citation was served on her by a disinterested person in Shelby, North Carolina. The matter was heard by a justice of the superior court sitting as a court of domestic relations, who thereafter denied and dismissed the petition. The case is before this court on the exception of the petitioner to this decision.
According to the evidence, the parties were married in South Carolina on October 3, 1953. The respondent before two children by petitioner, one born prior to their marriage and one after. The petitioner testified briefly but explicitly that at the time of the marriage respondent agreed that he was to go to Rhode Island to take employment and that as soon as he 'got settled' he was to send for her and the child. He further testified that in January 1954 he communicated with his wife, informing her that he had established a home and requesting her to come to Rhode Island. This the respondent did not do. About a year later, that is, in January 1955, petitioner went to Shelby. North Carolina, where respondent was then living, and attempted to persuade her to come to Rhode Island, which again she refused to do.
The petitioner's further testimony was in a similar vein relating to his efforts, without success, to persuade respondent to come to Rhode Island and resume their married life. He testified that she had told him that she did not want to live with him and that she had met another man by whom she had become pregnant. He concluded his direct testimony by stating that he had throughout his married life conducted himself as a good and faithful husband.
The trial justice then undertook to interrogate petitioner concerning his efforts to persuade respondent to come to Rhode Island and resume their marital relationship and the amount that he had contributed to the support of the children during the intervening years. The interrogation was comparatively brief but could be viewed as giving rise to some doubt that petitioner had contributed in a substantial manner to the support of the children during the period of separation.
At the close of this interrogation the trial justice said, 'There's no willful desertion here,' and remarked that petitioner did not come into court with clean hands, saying that he had 'two children down there and he has done practically nothing for their support.' At this point petitioner's counsel suggested that the question of the adequacy of the support of the children was not relevant to the issue raised by the petition for divorce. To this suggestion the trial justice replied:
Among other specifications of error, petitioner contends that the decision is based upon matters that are not in evidence. He argues, therefore, that the decision is beyond the purview of our settled rule that the decision of a trial justice sitting as a court of domestic relations will not be disturbed by this court on review unless it is clearly wrong. This contention, in our opinion, is meritorious.
It does not appear from the transcript that the decision of the trial justice was based on petitioner's failure to establish willful desertion within the meaning of the statute. Neither does it appear, despite his reference to the equitable maxim of clean hands, that he was invoking the doctrine of recrimination, that is, that petitioner had himself been guilty of conduct that would constitute a ground for divorce or of conduct so provocative of domestic discord as to induce or encourage respondent to engage in the conduct alleged to constitute the ground for divorce. Had the trial justice's decision been based upon either of the latter grounds, it would clearly be inequitable to permit petitioner...
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