Walker v. Walker

• Decision Date: 10 December 1915
• Docket Number: No. 4749.,4749.
• Citation: 95 A. 925
• Parties: WALKER v. WALKER.
• Court: Rhode Island Supreme Court

95 A. 925

WALKER

v. WALKER.

No. 4749.

Supreme Court of Rhode Island.

Dec. 10, 1915.

Suit for divorce by Nina Walker against James W. G. Walker. On motion to amend the petition to conform with the proof in the superior court. Respondent ordered to show cause why the case should not be remitted to the superior court, with direction to grant a divorce.

See, also, 94 Atl. 672.

Sheffield & Harvey, of Newport, for petitioner. Clark Burdick, of Newport, and Walter H. Barney, of Providence, for respondent.

SWEETLAND, J. This petition for a divorce a mensa et thoro is before us upon the petitioner's motion to amend the petition to conform with what she claims was the proof in the superior court.

The grounds for divorce alleged in the petition are adultery, extreme cruelty, and other gross misbehavior and wickedness in violation of the marriage covenant of the respondent; as to the latter ground there are no specifications contained in the petition. After the last trial in the superior court the justice presiding denied the petition for the reason that the petitioner had not proved either adultery or extreme cruelty.

The case came before this court upon exception to said decision, and after a consideration of the evidence before said justice we refused to disturb his decision. The petitioner moved for a reargument of the exception on the ground, among others, that:

"The evidence in the case shows clearly that the respondent has been guilty of gross misbehavior and wickedness repugnant to the marriage covenant, and such as entitles her to live separately and apart from the respondent."

In a rescript filed July 1, 1915, this court, in accordance with the rule to which it has always adhered, refused to consider the ground of "other gross misbehavior and wickedness in violation of his marriage covenant," alleged in the petition, because the petition did not specify the acts relied upon to make out said charge. Brown v. Brown, 2 R. I. 381. The petitioner has moved to amend her petition by adding certain specifications of alleged misbehavior and wickedness repugnant to the marriage covenant of the respondent. Among said specifications are the following, being the specifications marked (1) in said motion, a portion of the specification marked (5) in said motion, and a portion of the specification marked (6) in said motion:

"(1) That for a period of time from 1901 and continuing thereafter he has kept up and continued an undue, improper, indecorous, and licentious association and intimacy with a woman named Mabel Cochrane, many years his junior, and of questionable character and immoral habits."

"(5) That during the period beginning in the fall of 1901, and continuing thereafter, the respondent has bestowed upon and received from a woman named Mabel Cochrane, marked and improper attention, has indulged in undue and improper familiarity and intimacy with her, has part of the time, in the absence of his wife, and without her knowledge (and all of the time without her knowing who Mabel Cochrane was), had said Mabel Cochrane stay in his home for long periods of time, and had her occupy a room or rooms adjoining or connecting with his, so that they were constantly in each other's company, and improperly familiar and unduly intimate; that at other times while respondent was in the city of Charleston, S. C, he has boarded the said Mabel Cochrane in a hotel in said city; that during said period from 1901 the respondent has carried on a correspondence with said Mabel Cochrane, has received from her a letter or letters reflecting upon your petitioner, as well as letters of an improper and lascivious nature, and which show improper and lascivious relations between the said respondent and said Mabel Cochrane, and said respondent has continued to correspond with said Mabel Cochrane, and has from time to time visited her clandestinely in her apartments in Boston and elsewhere, and has been received by her alone, and with locked doors, when she was immodestly and improperly clad."

"(6) That the said respondent has been guilty of licentious and lascivious conduct with one Mabel Cochrane."

If the evidence presented before the superior court and contained in the transcript now before us establishes the above allegations, which we have taken from the specifications contained in the petitioner's motion to amend, then the petitioner will be granted leave to amend her petition to conform with the proof in that regard; and upon the petition so amended and the evidence she would be entitled to a decision in her favor.

At the first trial of this case the justice presiding in the superior court found the respondent guilty of adultery with said Mabel Cochrane upon evidence entirely circumstantial. In speaking of the evidence as to the relations existing between the respondent and Mabel Cochrane, said justice said that he was led "to a strong and abiding conviction that they have sustained adulterous relations with each other and that in all probability such relations have extended over a long period of time." The evidence before said justice was also presented at the last trial.

After decision for the petitioner in the first trial, a new trial was granted on the ground of newly discovered evidence, which newly discovered evidence was as to the result of a physical examination of Mabel Cochrane and tended to...