Stanzler v. Stanzler

• Decision Date: 21 June 1989
• Docket Number: No. 88-459-A,88-459-A
• Citation: 560 A.2d 342
• Parties: Milton STANZLER v. Phyllis STANZLER.
• Court: Rhode Island Supreme Court

Page 342

560 A.2d 342

Milton STANZLER v. Phyllis STANZLER.

No. 88-459-A.

Supreme Court of Rhode Island.

June 21, 1989.

Milton Stanzler, Cerilli, McGuirl, Hustwit & Bicki, William J. McGair, Providence, for plaintiff.

Dewitt T. Kersh, Jr., Tillinghast, Collins & Graham, Providence, for defendant.

OPINION

FAY, Chief Justice.

This case comes before us on appeal from a judgment of divorce entered in Family Court. The plaintiff, Milton Stanzler, filed a petition for divorce, alleging that the parties had been living separate and apart for three years. Thereafter the defendant, Phyllis Stanzler, filed a cross-petition for divorce based on irreconcilable differences and the plaintiff's gross misbehavior repugnant to the marriage covenant. The trial justice denied the plaintiff's petition and instead granted the defendant's cross-petition for divorce.

The facts pertinent to this appeal are as follows. The plaintiff and defendant were married on September 8, 1951, and subsequently two children were born of the marriage. Both children were emancipated at the time of the divorce proceedings. Prior to the marriage defendant was employed as a social worker and was working toward a master's degree at Boston University's School of Social Work. During the marriage, however, plaintiff was the principal income earner while defendant was primarily responsible for the maintenance of the home, the care of the children, and the organizing of social activities.

At trial plaintiff testified that in 1962 the parties purchased a marital home on Blackstone Boulevard in Providence. Additionally plaintiff stated that the parties had had a fairly happy, or at least "very civil," marriage. In 1980, however, plaintiff informed his wife that he was seeing another woman. The plaintiff explained that he would see this other woman some weekends and would see defendant other weekends.

In October 1980 plaintiff moved in with the other woman after an unsuccessful attempt at a reconciliation with defendant. Nevertheless, plaintiff invited defendant on a trip to St. Martin in January 1981. Subsequently plaintiff moved back into the marital home and stayed until March 1981. Although plaintiff testified that he did not reside in the marital home after this time, he continued to pay all the bills associated with the home.

The plaintiff rented a condominium in the fall of 1981 and exercised an option to purchase that property in December of that year. The plaintiff stated that he was interested in reconciling with defendant at that time so he placed the title of the property in both parties' names. In addition plaintiff testified that he continued to try to see defendant in 1982 "with the idea of going back." In July or August 1982 the couple took a trip to Maine. Although plaintiff did not believe that the couple had conjugal relations, he noted that they stayed in the same room.

The plaintiff admitted that he and defendant repeatedly attempted to reconcile until April 1985. For example, plaintiff voluntarily withdrew a previously filed divorce petition in March 1984. At that time plaintiff was residing in a carriage house on East Manning Street, Providence. He stated that he talked with defendant about purchasing the home because he believed "it would be a wonderful place for us to live."

According to defendant, plaintiff alternated seeing the other woman and seeing her between 1980 and 1982. The defendant, moreover, contradicted plaintiff's testimony regarding the Maine vacation, stating that the couple had marital relations during the trip and several times thereafter. The defendant also stated that even after plaintiff moved out of the home, they continued to see each other regularly. She agreed with plaintiff's testimony that they continually attempted to reconcile until early 1985. During the period of attempted reconciliation, defendant noted, the couple sought marital counseling on several occasions.

In the spring of 1985 plaintiff revealed to defendant that he wished to terminate the marriage. The plaintiff then filed a petition for divorce in Family Court on November 19, 1985. The trial justice found, on the basis of all the evidence presented, that plaintiff failed to establish that the parties had lived separate and apart for three years prior to the filing of the divorce petition. Instead the trial justice granted defendant's cross-petition for divorce, determining that plaintiff was guilty of gross misbehavior and conduct repugnant to the marriage covenant and that irreconcilable differences existed between the parties.

The judge then reviewed the assets of the parties and assigned property in accordance with the statutory requirements of G.L.1956 (1981 Reenactment) § 15-5-16.1, as amended by P.L.1982, ch. 403, § 1. Among other assets, the trial justice awarded the marital home to defendant. Finally, he awarded defendant a specific amount of alimony for a five-year period. The plaintiff's appeal followed.

The plaintiff first maintains that the trial justice erred in denying his petition for divorce pursuant to G.L.1956 (1981 Reenactment) § 15-5-3, as amended by P.L.1984, ch. 233, § 1. We have previously held that the purpose of § 15-5-3 is to free a husband and a wife who have lived separate and apart for a three-year period from the bond of marriage. Camire v. Camire, 43 R.I. 489, 491, 113 A. 748, 749 (1921). The divorce decree, however, is not granted as a matter of right, Smith v. Smith, 54 R.I. 236, 239, 172 A. 323, 324 (1934), but on the basis of the parties' failure to reconcile. McKenna v. McKenna, 53 R.I. 373, 375, 166 A. 822, 822-23 (1933). Therefore, we have interpreted the statute to require not only that a couple live separate and apart for the three-year period but that the ordinary and usual relations that exist between married persons, including intercourse, must not continue. Stewart v. Stewart, 45 R.I. 375, 377, 122 A. 778, 778 (1923).

Initially we note that findings of fact by a trial justice in a divorce action will not be disturbed unless the justice misconceived the relevant evidence or was otherwise clearly wrong. Perreault v. Perreault, 540 A.2d 27, 29 (R.I.1988). The trial justice found that plaintiff failed to establish clearly that the parties had been living separate and apart for the required period. Although testimony was presented that the parties had not engaged in marital relations since the summer of 1982, the presence of intimate activity alone is not the critical factor. Both parties testified that they actively tried to reconcile until early 1985. Additionally, the couple continued to see each other, sought marriage counseling, and held themselves out as husband and wife until at least 1984. Therefore, we find that the trial justice did not misconceive the relevant evidence, and we hold that plaintiff's divorce petition was properly denied.

Next plaintiff asserts that the trial justice incorrectly assigned property pursuant to § 15-5-16.1. Specifically plaintiff contests the trial justice's inclusion of certain items as marital property. First, plaintiff contends that a $25,000 loan to his daughter and son-in-law to purchase a house and a $100,000 note from plaintiff to Oceancliff Condominiums in Newport should not have been included in the marital assets. Second, plaintiff argues that the judge erred in treating a $60,000 certificate of deposit (CD) earmarked by plaintiff for the payment of taxes as assignable marital property. Instead plaintiff suggests that the tax liability should have been deducted from the marital estate prior to distribution of the assets. Third, plaintiff avers that the marital domicile should have been...