1. DIVORCE. Hearing on Motion for Allowance Following Decision of Supreme Court. Supreme court reversed superior court and ordered decree entered granting wife a divorce from bed and board. Lacombe v. Lacombe, 78 R.I. 118. At the time superior court entered this decree it heard and granted motion of wife for separate maintenance. Respondent contended decree ordered by supreme court should have been entered before motion for allowance based on such decree could be entertained.
In making his findings that petitioner required $110 weekly and that respondent had the financial ability to make such payments, the trial justice does not give us the benefit of pointing out the evidence on which he relied. In such cases this court independently examines the evidence and sustains, modifies or reverses according to the fair preponderance of the evidence as we see it. Lacombe v. Lacombe, 78 R.I. 118, 79 A.2d 760 (1951). At the outset, we hold that there are certain expenses which will be incurred by petitioner as a result of a change in her condition which justify a modification of the alimony award contained in the June 5, 1964 decree, and further that respondent has the financial means to comply with the order as thus modified.
In a close case, we would not disturb the Trial Court's conclusions as to the weight of the evidence. Compare Anton v. Anton, 10 Terry 431, 118 A.2d 605 (1955); Lacombe v. Lacombe, 78 R.I. 118, 79 A.2d 760 (1951); Glendening v. Glendening (D.C.App.) 206 A.2d 824 (1965). Nor would we ordinarily substitute our judgment for that of the Trial Judge as to the credibility of witnesses whom he saw and heard.
This is the order the petitioner herein seeks to have quashed. It is clear from the record that the wife had received support from the husband under the first order at least until the first part of May 1955, only eight months prior to the filing of the second divorce petition. The wife relies upon the recent cases of Lacombe v. Lacombe, 78 R.I. 118, and Cairo v. Cairo, 83 R.I. 502, 120 A.2d 556. In each of those cases the ground for divorce was, as here, neglect to provide within the year prior to the filing of the petition, and in each case it appeared that at some time during the year the husband had contributed to the support of the wife.
[1, 2] We cannot agree with such conclusion. In Lacombe v. Lacombe, 78 R.I. 118, this court had occasion to consider the question here presented. At page 122 we stated: "It appeared in substance that during the year next before the filing of petitioner's petition, which is the period to which our attention must be directed, the respondent for eight months at irregular intervals paid the rent of $13.65 for the apartment in which the petitioner was living.