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Lannon v. Lannon

Supreme Court of Rhode Island
Dec 4, 1957
136 A.2d 608 (R.I. 1957)

Summary

In Lannon the court "carefully examined the transcript" and determined that the findings of fact were insufficient to warrant the wife's award of divorce.

Summary of this case from Rogers v. Rogers

Opinion

December 4, 1957.

PRESENT: Condon, Roberts, Andrews and Paolino, JJ.

1. SUPERIOR COURT. Decisions. Findings of Fact. It is highly desirable that a trial justice, sitting as a court of domestic relations, make express findings of fact pertinent to his decision in granting or denying a petition for divorce and this is also true in the case of civil suits.

2. APPEAL AND ERROR. Domestic Relations Court. Decision Below. Failure to State Findings of Fact. Where findings of fact are not expressly set out supreme court will not, for that reason alone, refuse to accord the decision the persuasive force usually accorded such decisions on review. This is for the reason that implicit in a decision there are such findings of fact as are necessary to support it.

3. DIVORCE. Clean Hands Doctrine. Denial of Relief. Nature of Offense. A petitioner is precluded from obtaining a divorce if he is guilty of an offense which constitutes a ground for divorce under statute; but conduct not amounting to a recriminatory offense may be sufficient to cause relief to be withheld from a petitioner on the ground that he did not come into court with clean hands. G.L. 1938, c. 416, § 2.

4. DIVORCE. Clean Hands Doctrine. Petitioning Party. Conduct "without fault". The meaning of the words "without fault" under the rule that petitioner must show, speaking broadly, that he is without fault in matters relating to the marriage relation and the grounds relied upon, includes an absence of any conduct that is either repugnant to the marriage covenant or is provocative of domestic discord. G.L. 1938, c. 416.

5. DIVORCE. Right of Petitioner to Relief. Wrongful Conduct. Where there was uncontradicted evidence that petitioner had been arrested on charge of disorderly conduct in a cafe; that she had been in company of a man other than her husband on three or four occasions; and the record disclosed testimony of her husband, without denial on part of petitioner, that he had seen her in automobiles with other men; that frequently she had not come home until early morning hours while she was working on the first night shift; and that she had struck him on one occasion and assaulted him on another, Held, that in view of the decision in favor of the wife on the ground of extreme cruelty, and the finding of freedom from fault implicit therein, the trial justice either overlooked or misconceived the effect of certain evidence on petitioner's burden of proof and it was opinion of court that such uncontradicted evidence negatived petitioner's freedom from fault.

DIVORCE petition based on ground of extreme cruelty. A justice of superior court granted the petition and respondent excepted to the decision. Exception sustained, and petitioner directed to show cause, if any, why case should not be remitted to superior court with direction to deny and dismiss her petition. After further hearing court was of opinion that no sufficient cause had been shown to change its opinion and case remitted to superior court with direction to deny and dismiss petition.

Goodman Gorin, for petitioner.

Thomas F. Kelleher, Francis A. Kelleher, for respondent.


This is a petition for divorce wherein the only ground alleged was extreme cruelty. The matter was heard by a justice of the superior court who thereafter granted the petition. The case is before this court on the respondent's exception to that decision.

The parties were married on February 14, 1952. There is much conflicting evidence relating to their conduct during their married life, both petitioner and respondent adducing testimony as to the commission of violent assaults upon each other. Three children were born of the marriage. The petitioner testified that in February 1956, after what she described as a particularly violent assault upon her by respondent, she left him and filed this petition for divorce on March 2, 1956.

The trial justice, after a hearing thereon, held the case under consideration for some weeks and on June 27, 1956 granted the wife's petition stating: "The petition of Florence Lannon is granted on the ground of extreme cruelty." The trial justice then gave custody of the minor children to petitioner, reserved a right of visitation to respondent, and ordered him to pay $30 weekly for the support of petitioner and the minor children.

The respondent makes much of the fact that the trial justice made no express findings of fact in stating her decision. He argues that because she failed to set out findings of fact the decision is not entitled to the persuasive force we usually accord such decisions on review. In our opinion it is highly desirable that a trial justice, sitting as a court of domestic relations, make express findings of fact pertinent to his decision in granting or denying a petition for divorce. This is true also in the case of civil suits. McFarland v. Lynch, 60 R.I. 125.

However, where such findings of fact are not set out expressly we will not, for that reason alone, refuse to accord the decision the persuasive force usually accorded such decisions on review. This is for the reason that implicit in a decision there are such findings of fact as are necessary to support it. In the instant case implicit in the decision of the trial justice are findings that respondent was guilty of extreme cruelty and that petitioner was without fault.

In these circumstances we see no reason why the case should not fall within our well-established rule that the findings or decision of a justice of the superior court, sitting as a court of domestic relations, will not be disturbed unless he was clearly wrong. Castelli v. Castelli, 82 R.I. 232.

The respondent further contends that the trial justice was clearly wrong in the decision, inasmuch as she either overlooked or misconceived material evidence bearing on the question of petitioner's freedom from fault in the premises. It is well established in this state that a petitioner for divorce must show, speaking broadly, that he is without fault in matters relating to the marriage relation and the grounds relied upon. Comery v. Comery, 76 R.I. 191, 194.

The freedom from fault that a petitioner for divorce is required to show by affirmative convincing evidence is not limited to recriminatory offenses of such character on his part as would entitle a respondent to a divorce. A petitioner is precluded from obtaining a divorce if he is guilty of an offense which constitutes a ground for divorce under our statute. Thomas v. Thomas, 83 R.I. 251, 115 A.2d 526. But in this state conduct not amounting to a recriminatory offense may be sufficient to case relief to be withheld from a petitioner on the ground that he did not come into court with clean hands. Standish v. Standish, 48 R.I. 179.

In Comery v. Comery, supra, we held that where it was shown that a husband, who sued for a divorce on the ground of his wife's continued drunkenness, had for a long period of time made intoxicants available to her, he was not free from fault within the meaning of this rule, although he had for some time prior to filing his petition attempted to cut her off from liquor when her addiction thereto had become acute.

In Grimes v. Grimes, 61 R.I. 198, where the petition alleged extreme cruelty and it was shown that the petitioner had provoked and participated in arguments, it was held that he was not without fault as contemplated by this rule. It is our opinion that the meaning of the words "without fault" under this rule includes an absence of any conduct that is either repugnant to the marriage covenant or is provocative of domestic discord. See Salvatore v. Salvatore, 61 R.I. 109, and cases cited therein.

We have carefully examined the transcript and find that under cross-examination petitioner admitted that in 1945 while her husband was absent in the military service she was arrested on a charge of disorderly conduct in a local cafe. She further admitted under cross-examination that in March 1950 she had been observed by her husband while she was in the company of another man in a cafe and that she had been in that man's company three or four times. She denied that there had been any improper relations with this man and explained that they were together because they were "with a crowd."

The respondent testified that on occasion he had seen petitioner in automobiles with other men and that frequently, when she was working on the first night shift, she would not come home until the early hours of the morning. The respondent also testified that petitioner had struck him and discolored his eye on one occasion when he insisted that she leave a cafe where a fight had started among the patrons, and that on another occasion she had assaulted him, tearing his shirt off his back. The petitioner did not thereafter take the stand and deny that any of these incidents occurred, but she appears to have relied entirely upon the general statements of good conduct made by her when testifying in her own behalf.

We are of the opinion that in view of the decision and the finding of freedom from fault implicit therein, the trial justice either overlooked or misconceived the effect of the above-mentioned evidence on the petitioner's burden of proof. The question is not whether such uncontradicted evidence is sufficient to constitute a ground for divorce under our law but whether it has sufficient probative force to negative the petitioner's allegation of freedom from any fault which is repugnant to the marriage covenant or provocative of domestic discord. It is our opinion that this uncontradicted evidence does negative the petitioner's freedom from fault and that the trial justice was clearly wrong in granting her petition.

The respondent's exception is sustained, and on December 18, 1957 the petitioner may appear before this court to show cause, if any she has, why the case should not be remitted to the superior court with direction to deny and dismiss her petition.

JANUARY 17, 1958.

ON SHOW CAUSE ORDER.


In the above-entitled case, pursuant to the permission given in our opinion heretofore filed, the petitioner through her attorney appeared to show cause, if any she had, why the case should not be remitted to the superior court with direction to deny and dismiss her petition. At that time reasons were presented in support of her contention that the appeal should be denied and the decision for the petitioner sustained.

Upon consideration we are of the opinion that no sufficient cause has been shown to change our conclusions. Therefore the case is remitted to the superior court with direction to deny and dismiss her petition.


Summaries of

Lannon v. Lannon

Supreme Court of Rhode Island
Dec 4, 1957
136 A.2d 608 (R.I. 1957)

In Lannon the court "carefully examined the transcript" and determined that the findings of fact were insufficient to warrant the wife's award of divorce.

Summary of this case from Rogers v. Rogers

In Lannon v. Lannon, 86 R.I. 451, 136 A.2d 608 (1957), we determined that when "findings of fact are not set out expressly we will not, for that reason alone, refuse to accord the decision the persuasive force usually accorded such decisions on review."

Summary of this case from Rogers v. Rogers

In Lannon v. Lannon, 86 R.I. 451, 136 A.2d 608, we pointed out that a petitioner's freedom from fault is not limited to recriminatory offenses of such a character as would entitle a person to a divorce.

Summary of this case from Pereira v. Pereira

In Lannon v. Lannon, supra, we held such conduct proved where it was established that the petitioning wife had consorted frequently with other men, remained away from home until the early hours of the morning, and had physically assaulted her husband when he objected to her conduct.

Summary of this case from Calise v. Calise

In Lannon v. Lannon, 86 R.I. 451, the court said at page 455, "The question is not whether such uncontradicted evidence [that petitioner had been seen with other men, came home late nights and was abusive to respondent] is sufficient to constitute a ground for divorce under our law but whether it has sufficient probative force to negative the petitioner's allegation of freedom from any fault which is repugnant to the marriage covenant or provocative of domestic discord."

Summary of this case from Gomes v. Gomes
Case details for

Lannon v. Lannon

Case Details

Full title:FLORENCE LANNON vs. THOMAS LANNON, JR

Court:Supreme Court of Rhode Island

Date published: Dec 4, 1957

Citations

136 A.2d 608 (R.I. 1957)
136 A.2d 608

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