Provenza v. Provenza

Henderson, J., delivered the opinion of the Court. This appeal is from a decree awarding permanent alimony, without divorce, to a wife in the amount of $100 a week, awarding her custody of a minor child born in 1950 and the sum of $25 a week for support, ordering the payment of a counsel fee. of $750 to the wife’s solicitor, and dismissing the husband’s cross-bill praying an absolute divorce. The chancellor also allowed a $350 counsel fee for the appeal to this Court. The parties were married in 1946 and apparently lived ⁶⁵ happily together until 1956.

The appellant is a dentist, and in that year he sold his general practice to a Dr. Pessagno, with whom he shared an office, practicing his specialty, orthodontry. According to the wile, he became cool towards her and began to show an interest in Mrs. Pessagno. On June 6, 1957, again according to the wife, he ordered her from the marital bedroom and thereafter refused sexual relations. A neighbor, Mrs. Armanas, testified the husband told her he did not love his wife.

The husband admitted making this statement. A maid testified she heard the husband tell the wife he didn’t love her and “to get the hell out of the [bed] room.” According to the husband the wife was the one who refused sexual relations, probably because of a fear of pregnancy and also because of an unreasonable jealousy of Mrs. Pessagno. It appears that the two couples were intimate and frequently visited in their respective homes. There was testimony that Mrs. Provenza on one occasion told Mrs. Armanas that she thought her husband was having an affair with Mrs. Pessagno and made a similar statement to a Mrs. Adams when she was staying with the Provenzas.

On one occasion she set fire to a sofa in the Pessagno home because Mrs. Pessagno had seated herself between her husband’s legs and he was caressing her while they were watching movies. There was other testimony as to her neurotic behavior, and that, at his request, she consulted a psychiatrist but discontinued the treatment he recommended. The husband left the home in April, 1959, and never returned. He closed all department store accounts, closed their joint banking account, and instructed his wife not to charge anything to him or write any checks.

He sent her a check for $50 in a letter stating: “If you give me a divorce, I am willing to pay you more than the law is going to require me. You will be able to live better and everyone concerned will be happier. If I have to do it the hard way, I’ll get the divorce, and you won’t be any better off. Talk it over with Mr. Parks.” The appellant contends that there was no corroboration of the wife’s version of the cause for cessation of marital re ⁶⁶ lations.

We think however, there was some corroboration in the testimony of Mrs. Armanas and the maid. Also her claim of actual desertion is sufficiently corroborated.