Bianchini v. Bianchini., 1881.

• Decision Date: 04 August 1949
• Docket Number: No. 1881.,1881.
• Parties: BIANCHINI v. BIANCHINI.
• Court: Rhode Island Supreme Court

68 A.2d 59

BIANCHINI

v.BIANCHINI.

No. 1881.

Supreme Court of Rhode Island.

Aug. 4, 1949.

Appeal from Superior Court, Providence and Bristol Counties; Philip C. Joslin, Judge.

Bill in equity for partition by Silvio A. Bianchini against Loretta Bianchini. From a decree for complainant, respondent appeals.

Decree vacated and cause remanded.

Joseph Mainelli, of Providence, for complainant.

Goldberg & Goldberg, Philip B. Goldberg, Leo M. Goldberg, DiMascolo & DiPetrillo, Anthony DiPetrillo, all of Providence, for respondent.

BAKER, Justice.

This is a bill in equity for partition. The superior court after a hearing on bill, answer and proof entered a decree granting the prayers of the bill, and the cause is now before us on the respondent's appeal from the entry of that decree.

The facts as disclosed by the evidence are not in serious dispute. The parties are husband and wife who had been married for twenty-four years but had been living apart for three years when the trial below was had. They held the title as joint tenants to the parcel of real estate sought to be partitioned. The property, which is situated in the town of Johnston in this state, is a lot upon which is a cottage which was built in 1941 at a cost of approximately $8,000. There is a mortgage thereon, the unpaid principal of which at the time of the hearing in the superior court was in the vicinity of $4,000. The complainant is making monthly payments on the mortgage indebtedness which cover interest, taxes, insurance, and installments on the principal. Prior to the separation of the parties the property was the home of the family. The respondent is now living in the house with her married daughter, the latter's husband and their child.

The complainant argues that in the circumstances appearing herein he was entitled as a matter of law to the partition of the property in question and that the decree entered by the trial justice was correct. On the other hand, in support of her contention that the superior court was in error in ordering the property to be partitioned by sale the respondent urges that the complainant had no such legal right to have the joint property partitioned in that manner; that under the pertinent statutes of this state the trial justice had a discretion in respect to ordering a sale of the property; that he abused this discretion in entering the decree appealed from in view of the present record; and that Kelley v. Kelley, 51 R.I. 173, 153 A. 314, 74 A.L.R. 135, is decisive in her favor of the issue raised in the instant cause. These are the defenses made by the respondent to the complainant's bill.

We shall consider the Kelley case first, because of the respondent's view of the scope of the opinion therein. After examination we conclude that such case is clearly distinguishable from the instant case and that it is not decisive of the issues raised herein. The Kelley case is a law action of trespass and ejectment brought by a wife who was living apart from her husband, a doctor, seeking to eject him from the house owned by her and in which they had previously lived together as man and wife. This court sustained the action of the superior court in directing a verdict for the defendant. In its opinion the court discussed the meaning and effect of the pertinent statutes of this state and certain cases thereunder in relation to the control given married women in the management of their own separate property.

Near the end of the opinion the court made a reference in general terms to the fact that the law favors the marital relation and the permanency of the family. In that connection the following comment is relied on by the respondent: ‘Neither husband nor wife without lawful cause so long as the marital relation exists can exclude the other from the home they have established by mutual and voluntary choice.’ In our opinion that sentence must be read in the light of the case then before the court, viz., an action of trespass and ejectment. The court indicated this when it said, 51 R.I. at page 177, 153 A. at page 315: ‘The relief sought in the case at bar consists not only of putting the wife in possession but in expelling the husband from his wife's house which is the lawful home of both husband and wife.’

In the present bill in equity, however, the complainant is not seeking to expel the respondent from the property in question or to be put into exclusive possession thereof himself. He is asking, under the appropriate statute, for a sale of the property so that their joint tenancy may be terminated and their admitted respective shares therein may be lawfully ascertained and distributed. The primary object of this proceeding and the one in the Kelley case are thus fundamentally different. In our judgment the above references in the last-named case to the marital relation and the home are not controlling in the case at bar, and the mere fact that the property sought to be partitioned was previously the family home of the parties does not of itself, as the respondent contends, prevent partition being ordered in a proper case. This court has heretofore ordered partition between husband and wife of property comprising the family home, although in those cases any question in respect to such use of the property was not directly raised or passed upon. See Larocque v. Larocque, 74 R.I. 72, 58 A.2d 633; Kahnovsky v. Kahnovsky, 67 R.I. 208, 21 A.2d 569; Van Ausdall v. Van Ausdall, 48 R.I. 106, 135 A. 850.

In this state partition is governed by statute. General Laws 1938, chapter 586. The material sections of that chapter are as follows: ‘§ 2. All joint tenants, coparceners and tenants in common, who now are or hereafter may be actually seised or possessed of any estate of inheritance in any lands, tenements or hereditaments, may be compelled to make partition between them of such lands, tenements and here-ditaments, by writ of partition or bill in equity. * * * § 16. In suits in equity for partition, the superior court may, in its discretion, upon motion of any party to such suits, order the whole premises sought to be divided, or any particular lot, portion or tract thereof or the interest of the plaintiff or plaintiffs or of the defendant or defendants in...