Olivieri v. Escartín
Olivieri v. Escartín
Opinion of the Court
delivered the opinion of the Court.
This is an action of divorce on the ground of cruel treatment
“1. The parties contracted, marriage on April 11, 1943.
“2. They begot two daughters during their marriage, named Migdalia Ailyn and Silma Aixa, aged 9 and 6 years respectively.
“3. Plaintiff was separated from his wife on February 10 of the present year upon learning that she was maintaining relations with one Roeco Perrotta, known as Blackie.
“4. The certainty that such relations were unbecoming the conjugal fidelity arises from the following facts:
“(a) Plaintiff did not know Rocco Perrotta;
“(5) Defendant was seen with Perrotta on December 14, 1953, in an amusement place in Isla Verde;
“(c) On the 31st day of the following January she was also seen with him in his automobile by his recently divorced wife, who followed them in her car;
*507 “(d) In view of the fact that his ex-wife was apparently following them, he (Perrotta) dropped the defendant at a movie house in Santurce, but they were later seen again by the ex-wife as they came out of a bar; and
“(e) Plaintiff found in one of defendant’s handbags an identification plate (of postal employees) which belonged to Perrotta.”
The defendant appealed. She now maintains (1) that the lower court erred in holding and concluding that the evidence in this case, as it appears from the record, is sufficient to dissolve the marriage of the parties on the ground of cruel treatment on the part of the wife to the husband, and (2) that the judgment of the lower court is contrary to law. These errors will be discussed jointly.
It has been seen that the lower court made no finding on defendant’s refusal to cohabit with plaintiff, nor on the allegation that the defendant obtained money from several persons without her husband’s consent, despite the fact that both parties introduced evidence on both questions. The judgment of that court was based exclusively on the relations existing between defendant and one Rocco Perrotta.
According to the text writers, the conduct of a spouse with one of the opposite sex, while not furnishing adequate proof of actual adultery, may appear so persuasive of wrongdoing that the court will find that it amounts to cruel and inhuman treatment, and on the basis of that conduct will decree the divorce. See Schouler, Divorce Manual, 1944 ed., § 85(a), p. 112; Keezer, Marriage and Divorce, 3d ed. by John W. Morland, § 370, p. 436; Nelson, Divorce and Annulment, Vol. 1, 2d ed. (1945), § 6.20, p. 268. In support of the previous statement, these text writers cite the cases of Tschida v. Tschida, 212 N. W. 193; Begrow v. Begrow, 127 N. W. 256; Zumbiel v. Zumbiel, 69 S. W. 708; Glenn v. Glenn, 146 Pac. 619; Aitchison v. Aitchison, 68 N. W. 573; Craig v. Craig, 105 N. W. 446; Farley v. Farley, 270 N. W. 711; Holmes v. Holmes, 23 So. 324; Lowe v. Lowe, 25 A. 2d
In Morales v. Vélez, 75 P.R.R. 901, 908, we stated:
“We have decided that ‘ordinary evidence is not sufficient to break a bond which is the foundation of a fundamental social institution, on the ground of cruel treatment and grave injury,' Manich v. Quero, supra, it being a well-settled rule and traditionally recognized in law that the spouse seeking a divorce on the latter ground has the burden of producing a preponderance of the evidence and making a clear and satisfactory showing. Manich v. Quero, supra; Hanireu v. Hanireu, 26 A. 2d 381, 383 (Md.); Jacobson v. Jacobson, 36 A. 2d 189, 190, (Pa.). Acts of cruelty or indignities must be shown, and it is not •enough to support the burden of proof to introduce testimony •of witnesses who give their conclusions in that regard or have them testify merely in general terms. Nelson, Divorce and Annulment, 2d ed., pp. 292, 293; Walldren v. Walldren, 63 S. W. 2d 845, 847 (Ark.); De Lisi v. De Lisi, supra; Esenwein v. Esenwein, 167 A. 350, 351 (Pa.); Edmond’s Appeal, supra.
“Marriage may be dissolved by one of the grounds prescribed by the Civil Code. The state does not compel anybody to cohabit if there is a legal ground for divorce, but if the remedy is sought, he who desires it has the burden of introducing evidence to prove the ground that he invokes, which if believed by the judge, has the legal effect of establishing the ground. . . .” (Italics ours.)
Regarding the evidence which must be introduced in divorce cases on the ground of cruel treatment, this Court expressed a similar view in Marques v. Rivera, 68 P.R.R. 666, 669; Delgado v. Mercado, 60 P.R.R. 571; Gómez v. Trujillo, 59 P.R.R. 470; Manich v. Quero, 38 P.R.R. 83; and Figueroa v. Pierluisi, 25 P.R.R. 460.
Was the evidence in this case as strong and persuasive as is required by the afore-cited decisions, and does it show that the wife’s conduct toward her friend Rocco Perrotta is such as to warrant a divorce in favor of plain
(а) Plaintiff did not know Rocco Perrotta. The lower court erred in this conclusion, since the evidence clearly shows that plaintiff met Perrotta at a party in the Esquife night club which followed the wedding of defendant’s brother, which was attended by plaintiff as well as by Per-rotta, the defendant, and other persons. (Tr. Ev. 45, 48, 49.)
(б) The defendant toas seen with Perrotta on December Ik, 1953, in an amusement place in Isla Verde. Witness Rosita Brugueras, at that time the wife of Perrotta, and whom she divorced a few days later, testified on this point. Her testimony in this connection was, in brief: that on December 14 she saw the defendant, Perrotta, two other men, and a young girl come out in an automobile from the Guadalquivir amusement place in Isla Verde; that the defendant was seated next to Perrotta; that the automobile did not belong to the latter; that she followed them in her car but could not overtake them; and that this took place shortly after 5 p. m. of that day. (Tr. Ev. 61, 65.)
(c) On the 31st day of the following January she was also seen with him [Perrotta] in his automobile by his recently divorced wife, who followed them in her car. Rosita Brugueras testified in this connection.
(e) Plaintiff found in one of defendant’s handbags an identification plate (of postal employees) which belonged to Perrotta. Plaintiff Olivieri as well as Rosita Brugueras testified in this connection.
After analyzing the evidence on which the foregoing findings of the lower court were based, we find the following: (1) the defendant was seen in an automobile in which five persons in all were riding, and she was seated next to Perrotta; (2) she was seen on another occasion as she alighted from Perrotta’s automobile in front of the Metro in Santurce; (3) she was seen coming out of a bar, or in front of a bar, about 7 o’clock in the evening of the same
The judgment will be reversed and the complaint is dismissed.
See 31 L.P.R.A. §321.
In this connection, the defendant testified:
“Between two-thirty and three I left for the movies. While waiting at the bus stop, Mr. Perrotta went by in his car . . . and when he saw me, he stopped the car and as a friend of the house, of my family, he asked me where I was going. I said I was going to the Metro . . . He told' me that if he could first go to the Condado to express his condolence to a friend, he would drop me at the movies. I looked at the time and told him it was all right. He took me to the Metro . . . When we*510 stopped at the Metro, Rosa Brugueras stopped behind the car and made a few remarks to a woman with green eyes. Then I crossed the street and went into the Metro ... I arrived at the movies at 3:15 . . . more or less . . .” (Tr. Ev. 129, 130.)
Regarding' the incident, the defendant testified that as soon as she saw the picture she came out of the Metro and crossed the street in order to go to the Professional Building on De Diego Avenue, where her sister-in-law was confined; that after crossing she met Roceo Perrotta, who was passing by; that they did not go into Arnie’s Bar; and that Rosita Brugueras arrived while she was there, at the stop. She also admitted the incident with Rosita Brugueras at the stop and the fact that both were taken to police headquarters. (Tr. Ev. 134, 135, 138, 139.)
On this incident, the defendant testified that one of her little girls found the plate in her house. (Tr. Ev. 155.)
Case-law data current through December 31, 2025. Source: CourtListener bulk data.