Paolino v. Paolino

Citation420 A.2d 830
Decision Date22 September 1980
Docket NumberNo. 77-383-A,77-383-A
PartiesThomas J. PAOLINO, Jr. v. Paula E. PAOLINO. ppeal.
CourtRhode Island Supreme Court
OPINION

KELLEHER, Justice.

Thomas and Paula Paolino were married in Rhode Island on August 15, 1962, and divorced in Massachusetts. Paula is before us on her appeal from a decree modifying the visitation, support, and alimony provisions of the Massachusetts divorce decree.

The facts are relatively undisputed. Thomas and Paula are the parents of two minor children. Sometime after the marriage the couple settled in Massachusetts. Subsequently, marital misunderstandings developed, and Paula returned to Rhode Island with the children. A separation agreement dated July 7, 1972, granted Paula custody of the children and provided specific visitation rights for Thomas. In addition, Thomas agreed to make monthly support payments to Paula and the children. The parties agreed that the terms of the agreement would be governed by Massachusetts law and that the terms were subject to renegotiation "(u)pon the expiration of one year from the date hereof, or upon the remarriage of the Wife, whichever first occurs * * *." Each party had the right to submit terms of any renegotiation to binding and final arbitration. On the same day that the agreement was signed, Paula was awarded a divorce decree nisi by the Massachusetts Probate Court. The final decree of divorce was entered on January 8, 1973. The agreement was incorporated, but not merged, into the decree.

Three years later, in March 1976, Thomas filed in the Rhode Island Family Court a miscellaneous petition in which he sought additional visitation privileges. In his petition, Thomas contended that the Family Court need not give full faith and credit to the separation agreement as incorporated in the Massachusetts decree because the parties themselves, not the Probate Court, had defined the terms regarding custody and visitation. Thomas further argued that, regardless of the court's concern for constitutional comity, he was entitled to additional visitation rights because there had been a change in circumstances, including his remarriage, his closer proximity to Paula and the children, his permanent employment in Rhode Island, and his children's advancement in age and maturity.

In May of 1976 Thomas learned that Paula planned to remarry and relocate with the children in Philadelphia, Pennsylvania. He then amended his petition by asking that his monthly support payments as set forth in the separation agreement be reduced since upon remarriage Paula should no longer be entitled to alimony. 1 In addition, he sought "overnight visitation with his children two weekends a month at his residence plus one full uninterrupted month in the summer." On the very day that Thomas amended his petition, Paula filed a motion to dismiss the petition on the ground that she and Thomas had agreed to submit all post-divorce disputes to binding arbitration. Thomas, however, took the position that the separation agreement was a nullity.

By the time the amended miscellaneous petition and dismissal motion were heard in the Family Court, Paula had remarried and moved with the children to Philadelphia. During the hearing, Paula apparently suggested that the Pennsylvania court system would eventually acquire jurisdiction because she and the children intended to establish residence there.

In a decision rendered on December 23, 1976, the Family Court justice concluded that jurisdiction attached when Thomas filed his petition since the children were then residents of Rhode Island. He stated that once the court acquired jurisdiction, it could not be "relinquished * * * until the conclusion of the case" before the court. The trial justice, on the same ground, further ruled that he need not give full faith and credit to the visitation and support provisions incorporated into the Massachusetts decree. Consequently, Paula's motion to dismiss was denied.

The trial justice next ruled that in the best interests of the children "reasonable and liberal visitation rights" for the father were justified. These rights included visits every third weekend and on specific holidays and during alternate school vacations. The trial justice further held that Paula's remarriage terminated her right to receive alimony. He also reduced Thomas's monthly child-support obligation to $450. In reaching this conclusion, the trial justice found a change in Thomas's circumstances since the entry of the interlocutory decree, noting that Thomas's expenses had increased substantially since the execution of the separation agreement, primarily because of his remarriage and the additional transportation costs involved in visiting the children. A decree embodying these holdings was subsequently entered in the Family Court.

On appeal, Paula relies upon the binding-arbitration proviso of the separation agreement. Thomas, as noted earlier, contends that the agreement is a nullity because arbitration of visitation privileges and support obligations contravenes public policy, and the Family Court is the ultimate arbiter of the children's best interests.

Because the trial justice viewed Thomas's petition as one "to modify visitation rights and support payments," our initial task is to decide whether the full-faith-and-credit clause of the Federal Constitution bars the Family Court of this state from modifying the provisions of the Massachusetts decree.

It is well-settled law in the otherwise unsettled area of custody litigation that a sister state may modify a custody decree to the extent that the same decree was modifiable in the rendering state. See New York ex rel. Halvey v. Halvey, 330 U.S. 610, 614-15, 67 S.Ct. 903, 906, 91 L.Ed. 1133, 1136 (1947), McCullough v. Hudspeth, R.I., 389 A.2d 1242, 1244 (1978). Indeed, the confusion engendered by the full-faith-and-credit question has prompted at least one court to declare unequivocally that the "full faith and credit clause does not apply to custody decrees." Bachman v. Mejias, 1 N.Y.2d 575, 580, 136 N.E.2d 866, 868, 154 N.Y.S.2d 903, 907 (1956).

Our review of Massachusetts law convinces us that alimony, child-support, and custody awards made by Massachusetts courts may be modified to meet changed circumstances even when, as in this case, the support provisions were originally set forth in a separation agreement incorporated into the divorce decree. See Knox v. Remick, 371 Mass. 433, 358 N.E.2d 432 (1976); Ryan v. Ryan, 371 Mass. 430, 358 N.E.2d 431 (1976); Salvesen v. Salvesen, 370 Mass. 608, 351 N.E.2d 499 (1976); Pur-Shahriari v. Pur-Shahriari, 355 Mass. 632, 246 N.E.2d 677 (1969); Sloane v. Sloane, 349 Mass. 318, 208 N.E.2d 211 (1965); Mass.Gen.Laws Ann. ch. 208, §§ 28, 37 (West). We conclude, therefore, that the full-faith-and-credit clause would not preclude modification by the Family Court of the Massachusetts custody, alimony, and support orders. For the reasons that follow, however, we hold that the Family Court decree presently being reviewed must be vacated.

The question narrows to whether the Family Court possessed the power to modify the foreign decree. As noted earlier, Paula, by implication, argued that because the State of Pennsylvania would also have jurisdiction, the Family Court should dismiss the miscellaneous petition. Unconvinced, the trial justice noted that the residence of the children in Rhode Island at the time Thomas filed his petition was dispositive. He concluded that once the court acquired jurisdiction, it could not be "relinquished to any other jurisdiction until the conclusion of the case * * *." Apparently, the trial justice, in making this observation, was alluding to the well-settled principle that holds that jurisdiction over custody and support of minor children, once established either in divorce or separate-maintenance proceedings, continues within the control of the trial court. Cambra v. Cambra, 114 R.I. 553, 556, 336 A.2d 842, 844 (1975); King v. King, 114 R.I. 329, 330, 333 A.2d 135, 137 (1975); Reynolds v. Reynolds, 79 R.I. 163, 166-67, 85 A.2d 565, 567 (1952). In light of the children's Rhode Island residence when the petition was filed and Paula's subsequent general appearance, we agree that the Family Court had personal jurisdiction.

Notwithstanding the ostensible "power" of the trial court over the parties, we are now faced with the more troublesome question of its subject-matter jurisdiction. Although neither party has addressed the jurisdictional aspects of this controversy, it goes without saying that jurisdiction over the subject matter is an indispensable ingredient of any judicial proceeding, that it can be raised by the court sua sponte at any time, and that it can be neither waived nor conferred by consent of the parties. Naughton v. Goodman, 117 R.I. 113, 118-19, 363 A.2d 1345, 1348 (1976); Ryan v. DeMello, 116 R.I. 264, 266, 354 A.2d 734, 735 (1976); Castellucci v. Castellucci, 116 R.I. 101, 103, 352 A.2d 640, 642 (1976).

Furthermore, as we have repeatedly emphasized, the authority of the Family Court to act in a given situation must be expressly conferred by G.L. 1956 (1969 Reenactment) § 8-10-3. Christensen v. Christensen, R.I., 397 A.2d 900, 901 (1979); Britt v. Britt, R.I., 383 A.2d 592, 594 (1978); Fox v. Fox, 115 R.I. 593, 596, 350 A.2d 602, 603 (1976); Rogers v. Rogers, 98 R.I. 263, 268, 201 A.2d 140, 143 (1964).

Turning now to the question of subject-matter jurisdiction, we note that at the time the trial justice heard and decided this dispute, G.L. 1956 (1969 Reenactment) § 8-10-3 authorized the Family Court to hear and decide

"all motions for allowance, alimony, support and custody of children * * * wherein jurisdiction is acquired by the court by the filing of petitions for divorce, bed and board and separate...

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