Zildjian v. Zildjian

• Decision Date: 29 June 1979
• Parties: Armand ZILDJIAN v. Aparecida ZILDJIAN.
• Court: Appeals Court of Massachusetts

Page 697

391 N.E.2d 697

8 Mass.App.Ct. 1

Armand ZILDJIAN v. Aparecida ZILDJIAN.

Appeals Court of Massachusetts.

Argued Jan. 16, 1979.

Decided June 29, 1979.

John F. Driscoll, Boston (Daniel D. Gallagher, Boston, with him), for defendant.

Monroe L. Inker, Boston (Donald Tye, Boston, with him), for plaintiff.

Before HALE, C. J., and GOODMAN and BROWN, JJ.

GOODMAN, Justice.

Aparecida Zildjian, the defendant in a complaint for divorce in the Probate Court, appeals from a judgment which granted her husband, Armand Zildjian, the plaintiff, a divorce for cruel and abusive treatment and awarded her "the sum of fifteen thousand (15,000) dollars as alimony, said sum to be payable at the rate of three thousand (3,000) dollars each year for five (5) years." She contests both the judgment of divorce and the sufficiency of the alimony.

The plaintiff filed a complaint for divorce on October 27, 1972; the defendant's answer denied the allegations of cruel and abusive treatment and alleged as defenses condonation and recrimination. The trial of the case began on March 19, 1974, and continued intermittently. ¹ Both parties rested on August 16, 1974, when the case was continued for argument of counsel, which was heard on December 6, 1974. Judgment was entered on October 1, 1975. ² Thereafter, on April 19, 1977, the judge filed a report of material facts to which, on the defendant's motion, he added two further findings. (The transcript of the testimony is before us.) We affirm the judgment insofar as it grants a divorce but remand the case for redetermination of the questions of alimony and counsel fees.

The following summary from the judge's findings will serve as a background to our discussion. ³ In October, 1965, the defendant came from Brazil to work in the plaintiff's home in Hingham. She had been recruited through an agency which furnished domestic help to people in the United States. The findings state that "(t)he plaintiff had been previously divorced and had custody of his three children, two daughters age 17 and 16 and a son age 13 . . . . The defendant lived in the home of the plaintiff and along with duties as a domestic, she cared for the plaintiff's children, planned and prepared the meals. The defendant took her meals with the plaintiff and his family and from time to time would join in with the family at some birthday anniversary celebrations and the like. Beyond this, the defendant had no social contact with the plaintiff." While employed by the plaintiff, the defendant trained at night to be a manicurist; and sometime late in 1966, after her year's commitment was over, she left to take up that work.

Several months later, in the spring of 1967, the plaintiff telephoned her, and they began to see each other socially. They were married in December of 1967. At the time of their marriage, he was forty-six years old and she was thirty. It was her first marriage. The judge found that "(i)t was significant to note that after plans for their marriage were announced the attitude of the plaintiff's children changed towards the defendant which involved a course of conduct by them ranging from their not speaking to the defendant to an outright ignoring of the said defendant." The judge further found that from the beginning of the marriage, "a course of conduct between the parties was unfolding . . . involving plaintiff's children and the defendant, which . . . (resulted in) the ultimate deterioration of the marriage . . . ." The judge set out a series of some fourteen altercations and generally irritating incidents involving the plaintiff's family, friends and employees.

I. The divorce. The judge found four instances during the marriage when the defendant struck the plaintiff. These findings were supported by the plaintiff's testimony, which the judge could choose to believe rather than that of the defendant. Wilde v. Wilde, 350 Mass. 333, 334, 214 N.E.2d 874 (1966). Mancuso v. Mancuso, 1 Mass.App. 867, 868, 305 N.E.2d 868 (1974). It would serve no useful purpose to describe these incidents in detail at this point. (See note 6, Infra.) We agree with the judge's finding that each of them, which he "treat(ed) . . . individually," constituted cruel and abusive treatment. ⁴ "H(er) violent acts were done in anger, not in sport." Reddington v. Reddington, 317 Mass. 760, 766, 59 N.E.2d 775, 779 (1945). See Steere v. Steere, 265 Mass. 317, 318, 163 N.E. 852 (1928); Doyle v. Doyle, 328 Mass. 174, 175, 102 N.E.2d 435 (1951).

A. Condonation. The defendant argues that the judge erred in rejecting the defense of condonation. She points out that the first two instances of cruel and abusive treatment found by the judge occurred in April, 1969, and June, 1970, and that despite those incidents the parties continued to live together as husband and wife. But we need not pause to decide whether in the circumstances there was a complete resumption of the marriage. ⁵ See Holsworth v. Holsworth, 252 Mass. 133, 134, 147 N.E. 578 (1925); Sanderson v. Sanderson, 271 Mass. 386, 389, 171 N.E. 476 (1930); Eldridge v. Eldridge, 278 Mass. 309, 311-313, 180 N.E. 137 (1932). See also Steere v. Steere, 265 Mass. at 318-319, 163 N.E. 852; Callan v. Callan, 280 Mass. 37, 43, 181 N.E. 736 (1932). The two subsequent and more violent incidents on March 15, 1971, and April 30-May 1, 1971, are sufficient to sustain the divorce. ⁶

The judge found that the rift in the marriage was definite and final on January 2, 1971, when the plaintiff ordered the defendant from the marital home, and she left to stay with her brother. On March 15, 1971, she returned on the advice of her attorney, letting herself in by breaking a pane of glass in the back door. The plaintiff again ordered her out, but she did not leave. The judge found that thereafter "the plaintiff and defendant occupied separate bedrooms and did not engage in marital relations." The situation continued until the end of July, when she was hospitalized at a private psychiatric hospital. Upon her release on September 19, 1971, she moved into her own apartment and has since lived apart from the plaintiff.

After she left on January 2, 1971, the parties discussed divorce and a financial settlement. The judge found that the plaintiff took the position with the defendant that "he did not want the defendant any longer and that the principal objection to her returning to the home was the defendant's inability to get along with his children . . . ." He further found that "in all of their discussions the plaintiff put his children before the defendant." "Condonation is a state of mind to be determined upon all the evidence, including rational inferences." Hayden v. Hayden, 326 Mass. 587, 591, 96 N.E.2d 136, 139 (1950), citing Drew v. Drew, 250 Mass. 41, 45, 144 N.E. 763 (1924). It requires a factual determination of an intent to forgive; we can overturn the judge's refusal to make such a finding only if he was clearly wrong. Giles v. Giles, 279 Mass. 469, 471, 181 N.E. 505 (1932). Doyle v. Doyle, 328 Mass. at 176, 102 N.E.2d 435.

The defendant urges us to find condonation on the basis of her testimony that the parties engaged in sexual relations after the incidents of cruel and abusive treatment. She testified that they lived together as husband and wife in the marital home throughout the period from March 15, 1971, up to the time she was hospitalized. The judge, however, could, as he did, believe the plaintiff's testimony to the contrary. Further, it is apparent that though the parties were living in the same house the relationship had deteriorated to a "truce" with both parties represented by counsel. They were "not continue to liv(ing) together as husband and wife in any real sense." Hayden v. Hayden, 326 Mass. at 591, 96 N.E.2d at 139. See Coan v. Coan, 264 Mass. 291, 294-295, 162 N.E. 663 (1928); Giles v. Giles, 279 Mass. at 471, 181 N.E. 505; Quigley v. Quigley, 310 Mass. 415, 418, 38 N.E.2d 624 (1941). See also Doyle v. Doyle, 328 Mass. at 176, 102 N.E.2d 435.

The defendant also testified that after she was hospitalized on July 29, 1971, and thereafter during the remainder of the year 1971, and from time to time during 1972, she had sexual relations with the plaintiff at various hotels and motels. The judge pointed out in his findings that the defendant had put in evidence as exhibits twelve hotel and motel registration cards which "would give weight" to her testimony of sexual relations at the times and places indicated. We agree with the trial judge that even if her testimony, supported by the exhibits, is accepted, it does not require a finding of condonation. Sexual intercourse is not, as the defendant would have us hold, per se condonation. Even fifty years ago when sexual relations may have been viewed as more significant, the Supreme Judicial Court did not go beyond holding that sexual intercourse "ordinarily implies" condonement. Coan v. Coan, 264 Mass. at 295, 162 N.E. 663. See Gardner v. Gardner, 2 Gray 434, 442 (1854); Drew v. Drew, 250 Mass. at 45, 144 N.E. 763; LaFlamme v. LaFlamme, 210 Mass. 156, 158, 96 N.E. 62 (1911), is distinguishable; it is "not . . . a case of mere condonation . . . ." In the circumstances of this case, the judge was not clearly wrong in finding that the liaisons indicated by the exhibits, even if they did occur (the plaintiff denied them), did not manifest such a forgiveness an intent to let bygones be bygones as would rehabilitate the relationship and transform it into a significant marriage "in any real sense." Hayden v. Hayden, 326 Mass. at 591, 96 N.E.2d 136.

This case is similar in principle to Littlefield v. Littlefield, 292 A.2d 204, 211-212 (Me.1972), in which the Supreme Judicial Court of Maine held that it was error to find condonation on the basis of sexual relations between the parties three or four times during one month, while the parties were living apart and proceedings for divorce were pending. The court said, "(T)he circumstances...