Suit by wife for divorce. The Superior Court of New Castle County, rendered judgment denying husband's petition to vacate a decree nisi of divorce, and the husband brought error. The Supreme Court, Wolcott, J., held that submission to a single act of sexual intercourse with husband after entry of decree nisi did not constitute condonation of husband's prior adultery in absence of any intention of husband to effect a reconciliation and resume marital relations.
[48 Del. 180] Writ of Error to the Superior Court of New Castle County, which denied the appellant's petition to vacate a decree nisi of divorce.
A. James Gallo and Howard Duane, of Wilmington, for appellant.
H. Albert Young, of Wilmington, for appellee.
SOUTHERLAND, C. J., and WOLCOTT and TUNNELL, JJ.
The question for decision is whether or not a single act of sexual intercourse following the entry on the wife's petition of a decree nisi, but before the entry of a final decree, will ipso facto defeat the right of the wife to the divorce.
The facts of the case are as follows:
Throughout their married life the husband and wife were farmers. The wife lived a life of drudgery and was prematurely aged by hard work and child-bearing. As a result of their joint efforts, substantial
property was accumulated, title to which was taken in the name of the husband, with one minor exception. About two and one-half years ago the husband tired of his wife and entered into an illicit liaison with another woman. At some later date the wife discovered her husband's infidelity and separated from him. Thereafter, she lived alone on one of the two farms owned by the husband, and brought suit for divorce on the ground of her husband's adultery. A decree nisi was entered on her petition on February 4, 1953.
Immediately before the separation, only the two youngest sons lived with their parents, the other children having married and moved away. The eldest of these two sons was killed under an overturned tractor, his body remaining in the field until its discovery the following morning. Her son's death left his mother grief-stricken. Her grief did not ease with the passage of time. The youngest son remained with the husband after the separation.
The wife at the time of the divorce proceeding and subsequently was an ill, lonely and grief-stricken woman. She lived [48 Del. 181] alone with no money to support herself. Her husband had been placed under a support order for her benefit, but as of March 6, 1953 was upwards of $400 in arrears.
On March 6, 1953, the husband came to the farm where the wife was living to inspect some cattle. The wife went out to the barn, and they drove back in his truck to the farm house. They entered the living room. The husband made advances to his wife which she resisted, twice attempting to leave the room but each time being grabbed by the husband. Finally, the wife submitted to sexual intercourse. When the act was over the husband remarked to the effect that his lawyer would be glad to hear of the occurrence, and that the divorce was now ended. Other remarks of the husband, both prior to and following the act of sexual intercourse, justify the conclusion that the husband entered the wife's house with the formed intention ...