Contino v. Contino

117 A. 514, 31 Del. 488, 1 W.W. Harr. 488, 1921 Del. LEXIS 41

• Court: Superior Court of Delaware
• Decided: April 15, 1921
• Docket: Rule No. 12
• Status: Published

Opinion

Boyce, J.

If at the hearing on the rule, it is intended to offer testimony of a recriminating nature against the petitioner for divorce, it is suggested that an answer to the petition for divorce be filed by the petitioner for the rule according to the practice in contested divorce cases, when adultery is alleged as a ground for divorce.

It may be well to say at this time that the granting of the rule prayed for does not have the effect of ppening the decree nisi; but it will remain undisturbed unless and until cause be shown why it shall not become absolute; and the burden of showing sufficient cause is cast upon the petitioner for the rule.

The petitioner for the rule filed an answer, duly verified, to the petition for divorce, in which, inter alla, it was alleged:

_ “That the plaintiff has been guilty of adultery with one, Vingenza Abbati, a divorced woman, with whom he has been domiciled and living, for a long period of time, to wit, for about 10 years past and upwards, in the city of Wilmington, Delaware, at Nos. 1200 and 1202 Heald Street, and divers other places in said city.

“That during the time aforesaid, the plaintiff has openly consorted with and accepted and treated the said Vingenza Abbati as his wife, has held her out to the public as such and was in fact living with her as his wife at the time the within cause was heard and decided.

“Then when the defendant came to this country from Italy, about nine years ago, to seek her husband, the plaintiff, he not only avoided meeting her, but made every effort in conjunction and connivance with the said Vingenza Abbati, with whom he was living as aforesaid, to get rid of the defendant and cause her to leave him and prevent the resumption of their marital relations.

“ That in furtherance of such scheme or purpose it was falsely and maliciously contrived, through the efforts of the plaintiff and the said Vingenza Abbati, with the assistance of others, including Guiseppe Cordisco and Rafealla Romano, to charge and establish the commission of adultery on the part of the defendant.

“ That, after such scheme and contrivance had been carried into effect, and adultery was supposedly committed by the defendant, the plaintiff refused to recognize the defendant as his lawful wife, or to receive her into his home, and she was thereby forced and obliged to leave him against her will and was denied his society and support.”

She also preferred a petition for an order upon the respondent in the rule to pay her a sufficient sum to defray the necessary expenses of her defense, etc.

Mr. Wales, leave is granted to file the petition for expenses, but, before making any order, the court prefers to hear the testimony and determine whether reasonable grounds for this proceeding have been shown.

After hearing and considering the evidence adduced at the hearing on the rule, the court is clearly of the opinion that the defendant in the action for divorce has sustained the several allegations contained in her answer to plaintiff’s petition for divorce and that the decree nisi entered in this case should be vacated and set at naught, and the rule is made absolute. The court will order that the plaintiff pay to his wife, or her attorney, the sum of $75 to cover the necessary expenses of this proceeding.

The following order was thereafter entered:

“And now, to wit, this 10th day of April, A. D. 1921, the petition of Orsolo Contino, the defendant, together with the testimony taken in support of same, having been duly heard and considered, and it appearing to the court that sufficient cause has been shown why a final and absolute decree should be refused and the decree nisi signed in the above stated case should be set aside and annulled.”

It is ordered that a final and absolute decree in the above-stated case be refused, and that the decree nisi, signed on the 9th day of December, A. D. 1920, be and the same is hereby annulled and set aside.

Further ordered that the plaintiff, Giovanni Contino, pay the costs of these proceedings for review, amounting to $28.50, within 60 days.