Wolf v. Wolf
| Decision Date | 13 March 1975 |
| Docket Number | No. 73-126-A,73-126-A |
| Parties | Jacquin J. WOLF v. Joseph F. WOLF. ppeal. |
| Court | Rhode Island Supreme Court |
This is a wife's petition for divorce. The parties were married in 1949. There were six children born of the marriage. The wife filed this petition for divorce in 1970 on the ground of extreme cruelty. 1 The trial justice granted the husband's motion to dismiss on the ground that the wife had failed to prove her case. This case is before us on her appeal.
The wife argues that the trial justice misconceived the evidence and misapplied the law in the case. In reviewing the decision of the justice below, where he is passing on a motion to dismiss, we merely determine whether his findings are supported by the evidence or whether in making such findings he misconceived or overlooked material evidence. His findings are entitled to great weight and will not be set aside unless they are clearly erroneous or fail to do justice between the parties. Krawcyzk v. Krawcyzk, 81 R.I. 335, 102 A.2d 870 (1954). It is also our duty to determine whether, having made supportable findings, he applied the correct rule of law. Compare Levy v. Industrial Nat'l Bank of Rhode Island, 106 R.I. 437, 260 A.2d 919 (1970) with Rowell v. Kaplan, 103 R.I. 60, 235 A.2d 91 (1967).
The wife first argues that the trial justice erred in treating her petition as one for a divorce on the ground of impotency rather than on extreme cruelty. This contention is not supported by the record. In his decision the trial justice specifically stated that he viewed the petition as one based on the ground of extreme cruelty.
In reviewing the trial justice's findings, we believe that they are supported by the evidence. The trial justice noted that while the husband became extremely exasperated or annoyed and belittled his wife, her resulting physical suffering was a matter of subjective feelings. He noted that any alleged impotency in and of itself would not amount to extreme cruelty. He found that the husband made every reasonable effort within his control to seek help for his problem. the trial justice noted that the evidence indicated that the husband talked with a priest, and went to a marriage counselor. He consulted with a psychiatrist for up to 6 months. He went to a doctor who referred him to a specialist. The real question, as the trial justice saw it, was whether there was a course of conduct willfully entered into by the husband that caused his wife to suffer physical harm. Relying on Borda v. Borda, 44 R.I. 337, 117 A. 362 (1922), the trial justice concluded that there was no evidence of willfullness or a course of conduct deliberately entered into and designed to humiliate the wife. Since the wife failed to prove her case by clear and convincing evidence, he granted the motion to dismiss.
The wife argues that the trial justice misapplied the law by using too narrow an interpretation of 'willfullness' or course of conduct 'deliberately entered into and designed to cause physical cruelty.' In our opinion the trial justice applied the correct rule in accordance with the line of cases interpreting this language.
In Grant v. Grant, 44 R.I. 169, 116 A. 481, 482 (1922), a divorce was granted on the ground of extreme cruelty because the court found that the respondent husband '* * * wilfully and designedly pursued a course of conduct * * * calculated to * * * distress and humiliate his wife * * *.' This intent to 'distress and humiliate' has been the definition most often used by the court as the necessary intent element of extreme cruelty. Borda v. Borda, supra; McKeon v. McKeon, 54 R.I. 163, 170 A. 922 (1934).
The court took a sharp turn in Bastien v. Bastien, 57 R.I. 176, 178, 189 A. 37, 38 (1937), when it defined the necessary conduct as 'conduct cruelly calculated to cause * * * impairment of health.'
Bastien cites Borda as authority for the definition of intent, but Borda requires intent to humiliate, not intent to impair health. This misquoting caused confusion in the cases which followed.
The case of Ennis v. Ennis, 83 R.I. 64, 113 A.2d 133 (1955), reiterated the Borda standard. Following Ennis, the court reverted to the Bastien test in Miller v. Miller, 87 R.I. 145, 139 A.2d 86 (1958). Thus in our c...
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