Ward v. Ward

• Decision Date: 14 June 1971
• Docket Number: No. 1276-A,1276-A
• Citation: 108 R.I. 618,278 A.2d 472
• Parties: Bernard J. WARD v. Mary Avery Braman WARD. ppeal.
• Court: Rhode Island Supreme Court

Page 472

278 A.2d 472

108 R.I. 618

Bernard J. WARD v. Mary Avery Braman WARD.

No. 1276-Appeal.

Supreme Court of Rhode Island.

June 14, 1971.

[108 R.I. 623] Kirshenbaum & Kirshenbaum, Alfred Factor, Providence, for petitioner-appellee.

Corcoran, Peckham & Hayes, Joseph T. Houlihan, Newport, for respondent-appellant.

OPINION

JOSLIN, Justice.

This is a domestic relations matter. The husband petitioned for a divorce from bed, board and future cohabitation and the wife cross-petitioned for an absolute divorce. Each alleged as a ground the extreme cruelty of the other, and the husband in addition alleged that the wife had been guilty of gross misbehavior and wickedness repugnant to and in violation of the marriage covenant and that she had been guilty of adultery. The case turned on credibility and a trial justice in the Family Court accepted as the more credible the evidence offered on behalf of the husband. His petition was granted on the ground of extreme cruelty and the wife's cross-petition denied. The wife appealed. She assigns as error three evidentiary rulings.

Initially the wife refers us to the interrogation of a police officer she called as a witness. In direct examination the officer identified himself, said that he recalled the evening of September 3, 1967 and was then asked 'Where were you?' An objection to that question was sustained on the ground that the answer could only relate to events occurring subsequent to the commencement of the divorce petition. While the wife agrees that Ricard v. Ricard, 52 R.I. 288, 160 A. 745, says that evidence of events postdating the divorce petition will generally be inadmissible to establish entitlement to a divorce, she nonetheless argues that in this case the evidence should have been admitted to lend weight to and to corroborate the evidence she had adduced concerning her husband's former acts of ill-treatment.

Assuming that evidence of subsequent events should have been admitted for the purpose of corroboration, ¹ the question of whether its exclusion was prejudicial turns on what the officer would have said had he been permitted to respond, and the only information thereon in this record is found in the discussion between the court and counsel preceding the ruling on admissibility. When we look to it to ascertain the purport and purpose of the excluded testimony, we find that the trial justice was advised that it would coincide with what a previous witness had said about an altercation which occurred on the night of September 3, 1967, and would tend to show the husband's 'propensity for a violent disposition.' There is nothing in that discussion, however, which identifies the witness who had earlier testified or tells what his testimony was. Neither is there anything which describes the nature of the altercation, its cause or its participants. Without that information-and we will not search the record in an attempt to ascertain whether it exists, Clarke v. Sullivan, 103 R.I. 177, 235 A.2d 668-we obviously lack a clear picture of what the wife intended to prove and we are, therefore, hardly in a position to decide whether she was prejudiced by reason of the exclusion of the answer.

If it had been the wife's intention to preserve the ruling sustaining the objection to her inquiry as a ground for appeal, she should have amplified the record with respect to the excluded testimony so that it would be reasonably specific, rather than vague; and her statement of the anticipated testimony should have been sufficiently detailed and factual to give us a clear picture of what she intended to prove and to establish that the evidence she was blocked from eliciting was admissible. These are prerequisites to preserving for review a ruling rejecting testimony. Cullen v. Adler, R.I., 271 A.2d 466, 470; Manning v. Redevelopment Agency of Newport, 103 R.I. 371, 238 A.2d 378. Because the standards were not satisfied in this case, we are unadvised on matters which are essential to appellate review and we are therefore unable to determine whether the ruling complained of, even if erroneous, was prejudicial.

The next assignment of error concerns an affidavit which a key witness for the husband gave to the husband's counsel some time prior to the commencement of the litigation. It related to matters about which the witness testified to at the...