Tobin v. Tobin.

• Court: Rhode Island Supreme Court
• Writing for the Court: CONDON, Justice.
• Citation: Tobin v. Tobin., 70 R.I. 362, 38 A.2d 756 (R.I. 1944)
• Decision Date: 26 July 1944
• Docket Number: No. 8643.,8643.
• Parties: TOBIN v. TOBIN.

38 A.2d 756

TOBIN

v.TOBIN.

No. 8643.

Supreme Court of Rhode Island.

July 26, 1944.

Aram A. Arabian and Joseph Mainelli, both of Providence, for petitioner.

Alfred J. Curry, William E. Walsh, and Curry & Walsh, all of Providence, for respondent.

CONDON, Justice.

This is a motion to vacate a final decree of divorce on the ground that a reconciliation was effected between the parties before the entry of such decree. The superior court, after a hearing, granted the motion and embodied its decision in a decree. Instead of taking an appeal from that decree, the petitioner has brought the cause here by bill of exceptions.

Respondent did not object to this method of review nor did petitioner object to the respondent's filing a motion within the original divorce cause to vacate the final decree of divorce, rather than an independent petition for such purpose. Nevertheless we think those matters of procedure are deserving of our attention and we shall consider them later in this opinion. We shall first consider those exceptions which petitioner has briefed and argued.

On December 15, 1942 the superior court granted petitioner an absolute divorce on the ground of extreme cruelty. A final decree of divorce was entered on June 21, 1943. On October 6, 1943 respondent filed, in the superior court, the instant motion which was granted on October 29, 1943 and the decree embodying that decision was entered on November 22, 1943.

Respondent testified at the hearing in the superior court that, at the petitioner's request, he went to her apartment at 75 Hamilton street, Providence, on February 11, 1943 and stayed there four days; that they agreed to live together again; that he brought his clothes to the apartment and lived there continuously until May 5, 1943 and during that time resumed marital relations with his wife. He further testified that he left the apartment on May 5, 1943 as a result of an altercation with petitioner; that he returned on May 10, 1943 but was taken out of the apartment by the police on petitioner's complaint; that on May 11, 1943, as a result of a conference with the captain of police and petitioner's attorney at the police station, he agreed to keep away from her apartment; and that thereafter he never saw petitioner again until the day the instant motion was heard in the superior court.

There was further evidence that respondent gave petitioner his wages while he lived at 75 Hamilton street; that he had sexual intercourse with her about once a week; that his meals at the apartment and the lunches which he took to his work were prepared by her; that she attended to some of his other personal needs; and that he assisted her in caring for their infant child. There was also testimony from a fellow employee of the respondent that he, on two occasions between February 11, 1943 and May 5, 1943, had supper with respondent at 75 Hamilton street and that on each occasion petitioner had prepared the meal. This witness testified further that from his observation petitioner and respondent appeared to be living there together as husband and wife.

Petitioner testified that this witness had never been in her apartment at 75 Hamilton street. She also testified that she had never resumed sexual intercourse with respondent but that he had tried to force himself upon her and that it was on such an occasion on May 10, 1943, that she called the police and had him taken out of the apartment. She admitted, however, that she had asked respondent to come to her apartment in the first place and that he had lived there for several weeks. But she denied that he lived there for as long a period as from February 11 to May 5, 1943. She testified that she did not give him permission to move into her apartment; that she never agreed to live with him again; and that she never received his wages while he was at her apartment. She admitted, however, that he gave her $25 a week, but she said he was required to do this by order of the court. No one else testified for the petitioner.

The trial justice found from the evidence that there was undoubtedly “a reconciliation between the parties sometime between February 14th and May 6th” and that “marital relations in the usual meaning of that phrase were resumed during that period between the parties.” Because of such reconciliation he held, on the authority of Berger v. Berger, 44 R.I. 295, 117 A. 361, that the final decree should be vacated.

Petitioner contends that the decision of the trial justice was against the evidence and also that it was against the law. On the first ground she argues that the respondent has failed to prove that a free and voluntary reconciliation had been effected. On the second ground she contends that if the evidence shows that respondent forfeited his right to the condonation or forgiveness upon which the attempted reconciliation was based then her right to a divorce for the past cruelty was revived and the abortive reconciliation was no bar to the entry of a final decree of divorce. In support of such contention she relies upon Egidi v. Egidi, 37 R.I. 481, 93 A. 908, Ann.Cas.1918A, 648, and argues that the instant case is clearly ruled by that case rather than by the Berger case upon which the trial justice relied.

After a careful reading of the transcript we are of the opinion that the trial justice was not clearly wrong in his finding of a reconciliation and therefore petitioner's first contention is without merit. The evidence on this issue was conflicting and largely reduced itself to a question of who was the more credible, the petitioner or the respondent. In determining that question, on the record here, the trial justice had the distinct advantage over us of seeing the witnesses in court and the opportunity of observing them while they were testifying. Apparently he believed the respondent rather than the petitioner and he was supported in that view by certain uncontradicted evidence which was in favor of the respondent and raised a presumption that marital relations had been resumed by the parties. The petitioner's evidence was not, in our opinion, such as to rebut that presumption.

The second ground of petitioner's exception to the trial justice's decision presents a much more troublesome question. Under our practice in divorce there is a waiting period of six months after decision on the merits before a final decree of divorce may be entered. While this court has said in McLaughlin v. McLaughlin, 44 R.I. 429, 117 A. 649, 650, that the six months waiting period presents a “further opportunity for condonation and for reconciliation” it has never heretofore been called upon to decide what effect an abortive reconciliation would have upon the decision on the merits in favor of the petitioner. Petitioner claims that the Egidi case is in point, although it is not a case of an attempted reconciliation during the six months waiting period. The Berger case does involve a reconciliation during that period and is, therefore, claimed by the respondent to be precisely in point.

The opinion of the court, in each of those cases, contains statements which are of assistance in answering the novel question which is raised here. In the Berger case the respondent and not the petitioner was insisting that the final decree should stand notwithstanding the reconciliation, and it was his fraudulent conduct which furnished the basis for petitioner's petition to vacate the decree. Respondent there, by misrepresenting to his wife's attorney that she desired to have the final decree of divorce entered, although the respondent was at that time actually living with her as his wife, obtained the entry of the decree.

This court, in that case [44 R.I. 295, 117 A. 362], characterized respondent's fraud as “gross and contemptible” and declared that it had been “practiced on the court and on the petitioner.” The court further observed that even “if the petitioner had desired and authorized her attorney to secure entry of the final decree the court could not have properly entered it, as the resumption of marital relations with her husband after the decision and before entry of final decree was a condonation of the offense of the husband.” And it added: “As a reconciliation had been effected in this case, it would be a fraud upon the court for either party to procure the entry of final decree.” That statement is relied upon by respondent in the case at bar as supporting his contention that the trial justice's finding of a reconciliation required that his motion to vacate the final decree of divorce be granted.

In Egidi v. Egidi, supra [37 R.I. 481, 93 A. 909, Ann.Cas.1918A, 648], the petitioner, after signing the petition for divorce, lived with her husband for three days and gave as a reason, “to see whether he would be good or not” and that she “thought he probably would be all right.” Thereafter he continued to slap her and she again left him before the citation was served on him. On those facts, this court held that assuming there had been condonation by the petitioner it failed as a defense to the petition because the parties had not lived together since the last act of cruelty. The court said that because of such act the petitioner “was then free to begin proceedings for divorce on the ground of extreme cruelty, and to prove in support thereof any such acts prior to the filing of her petition.” The court went on and asked itself the question whether the original petition for divorce was “in effect abated by anything which was shown to have occurred after its signing.” It answered that question in the negative.

From the court's discussion, in that case, of the authorities, it is clear that it rejected the view, apparently held by some courts, that condonation necessarily put an end to the pending proceeding for divorce notwithstanding the repetition by the guilty party of his misconduct which had been conditionally forgiven. It is equally clear that the court...