34 A.2d 726 | R.I. | 1943
This case is before us on the exception of the petitioner to the decision of the trial justice denying a petition for divorce. This petition by the husband was based solely on the ground that the respondent had been guilty of wilful desertion for more than five years next before the filing of the petition.
As she was living in England at the time when the petition was filed, service of process in the case was made upon her there by a disinterested person; but she has entered no appearance in the case. It was heard solely on oral testimony
The only evidence in the case was uncontradicted testimony given by the petitioner and a man and wife who, during the last years when the parties were living together, lived in a home adjoining that of the petitioner. The following facts were shown by this testimony:
The parties were married July 4, 1925 in Leeds, Yorkshire England. Later in that year they removed to Canada and in 1929 removed to this state, where they lived together, apparently *404 happily, until the latter part of 1932. Then he found it impossible to get private employment and therefore worked for a considerable period under the W.P.A., being paid $12 to $14 per week, all of which he turned over to the respondent for the maintenance of the family, which then included a son about six years old.
The respondent left the petitioner late in that year, taking the boy with her, and returned to her old home in England, where her sisters were living and where she had some real estate. The petitioner testified that she made arrangements to go and secured transportation, without his knowledge; that her reasons for leaving were that she was dissatisfied with the amount of money that he was earning and that with the help of her relatives in England she could do better there than in this country.
The petitioner also testified that he begged her to stay, but she refused; that he then asked her to wait a week, for the next boat, so that he could get a visa for her, which would facilitate her return; but that she refused to wait and went to England with the boy and has remained there ever since, though he wrote her many times and asked her to return. There was no direct evidence that when she left she intended never to come back.
It does not appear that he ever sent her or offered to send her any money for the expenses of returning or for the support of herself or their boy, although, a few years after she left, his earnings greatly increased. For several years they corresponded and she urged him to return to England, but he refused. After a few years, correspondence between them ceased.
He also testified that the last time when he asked her to come back she said that she would not, because the boy did not want to come back. He did not present any letter from her nor give any reason for not doing so. He further testified that he had never sent her any money for the support of the boy because he could not afford to do so; and that he always said that if she wanted to come back he would save and send *405 their fares, but that she never said that she would come back.
The trial justice, in his decision denying the petition, stated that the respondent did not desert the petitioner at the time when she left to return to England, but that there was at least tacit consent on his part; and that "she just left him till better times." He said also that the petitioner's testimony was rather vague and that there was nothing to show that he tried to save any money for the return of his wife and boy. The trial justice also stated that though the petitioner had been employed for six years at good wages, he had sent nothing for the support of his wife or son and therefore came before the court "with very poor grace."
It is well settled in this state that divorce cases differ substantially from other cases in that the state is virtually a party, interested in the general maintenance of marriage relations. In McLaughlin v. McLaughlin,
That case was cited with approval in Hurvitz v. Hurvitz,
In Warren v. Warren,
The case of Puhacz v. Puhacz,
Blatchford v. Blatchford,
We have carefully considered the evidence which was before the trial justice in the instant case; and after applying therein the rules laid down in the above-cited cases as being the proper rules to be applied to decisions of trial justices in uncontested divorce cases, we are of the opinion that we cannot properly find that he was clearly wrong in his decision denying the petition. *407
The petitioner's exception to the decision of the trial justice is overruled, and the case is remitted to the superior court.