Bouchard v. Bouchard

Citation102 R.I. 290,229 A.2d 850
Decision Date31 May 1967
Docket NumberNo. 10855,E,No. 42,42,10855
PartiesStacia BOUCHARD v. Charles BOUCHARD. Appealx.
CourtUnited States State Supreme Court of Rhode Island
Israel Moses, Warwick, for petitioner
OPINION

POWERS, Justice.

This cause originated with the filing of a petition under the provisions of G.L.1956, § 15-5-9, praying for a divorce from bed, board and future cohabitation until the parties be reconciled. After a hearing thereon, which lasted for eight days, it was denied and dismissed by a family court justice in a written decision entered on September 7, 1965.

Within seven days thereof, petitioner gave notice of her intention to prosecute a bill of exceptions as provided by § 9-24-17. The decision denying and dismissing her petition having been entered prior to January 10, 1966, 1 a review thereof could be had in this court only by way of a bill of exceptions as provided in § 9-24-13. Thrift v. Thrift, 30 R.I. 357, 75 A. 484; Sullivan v. Sullivan, 68 R.I. 25, 26 A.2d 536.

On October 5, 1965, petitioner filed a motion for allowance of the cost of the transcript and a reasonable counsel fee to aid in the prosecution of her bill of exceptions to this court. The respondent on October 25, 1965, filed a motion to dismiss petitioner's bill of exceptions on the grounds that she had not complied with the applicable provisions of § 9-24-17 and rules 5, 21 and 28 of the rules of the family court. 2

These motions were heard together on November 12, 1965 by the family court justice who presided at the hearing on the petition for the divorce a mensa et thoro. It is manifest from the transcript of that hearing that said justice was of the opinion that petitioner's motion for allowance and costs would require consideration only if respondent's motion to dismiss were denied. Stated otherwise, he believed that if he granted respondent's motion to dismiss, petitioner's right to review in this court on her bill of exceptions would be foreclosed.

In any event, a decision was entered March 21, 1966, granting respondent's motion to dismiss; and within seven days petitioner gave notice of her intention to prosecute a bill of exceptions from that decision. Thereafter, on April 15, 1966, a decree was entered which embodied the March 21, 1966 decision and petitioner claimed an appeal from that decree on April 28, 1966. It is on this bill of exceptions and claim of appeal that the cause came to this court for review.

On September 29, 1966, respondent filed a motion in this court to dismiss the proceedings on the grounds that the March 21, 1966 decision could be reveiwed in this court only on an appeal claimed within twenty days from the entry thereof, pursuant to the provisions of said P.L.1965, chap. 55. The bill of exceptions initiated March 28, 1966, he contends, was jurisdictionally inept and the appeal claimed April 28, 1966, likewise lacked validity not having been claimed within twenty days of the entry of the decision. On October 26, 1966, we denied the motion to dismiss without prejudice to respondent to renew his motion when the cause was argued on its merits.

Acknowledging that on or after January 10, 1966, the proper procedure for review in this court was by way of appeal, we nevertheless deem it advisable to treat the March 28, 1966 filing of notice of intention as though it were an appeal taken from the family court decision entered March 21, 1966. We do so for the purposes of correcting an erroneous impression of the family court's jurisdiction, and to achieve a final disposition of a cause that originated in 1958. The motion to dismiss is therefore denied.

We turn first, then, to a consideration of the family court justice's jurisdiction to hear and determine respondent's motion to dismiss petitioner's bill of exceptions prosecuted in connection with the decision entered September 7, 1965. Although respondent predicated his motion on petitioner's failure to comply with the family court rules heretofore enumerated (see footnote 2), it is clear from a reading of his March 21, 1966 decision that the family court justice relied on the cases of Barber Vehicle & Motor Co. v. Noel, 87 R.I. 460, 143 A.2d 281, and Koczkodan v. Haberek, 92 R.I. 66, 166 A.2d 214. In those cases this court held that a valid prosecution of a bill of exceptions pursuant to the provisions of § 9-24-17 requires compliance with certain conditions precedent, such conditions being jurisdictional in nature. Applying the holdings of the cited cases to the facts of the instant case, the family court justice concluded that petitioner had not complied with the conditions precedent and granted respondent's motion to dismiss.

However, the legal adequacy of the steps taken by an appellant in the prosecution of a bill of exceptions under § 9-24-17 is for this court's determination and not that of the nisi prius court. In the circumstances here present, therefore, we would normally sustain petitioner's appeal. Such a result in light of the instant record, however, would serve no useful purpose. Recognizing that it was not within the jurisdiction of the family court justice to pass on the legal adequacy of petitioner's compliance with the requirements of § 9-24-17, we nevertheless believe that his determination as to the merits should be adopted by this court so as to achieve a final disposition of the cause.

Turning then to the procedure adopted by petitioner, as disclosed by the record, which motivated the family court justice to reach his decision, we find that on September 13, 1965, petitioner made no request of the court stenographer for an estimate of the transcript as set forth in the cited section. Rather, she made a deposit of $5 with the court clerk who made the following notation: 'Partial Estimated cost of above transcript of evidence, etc.,...

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4 cases
  • Hopf v. Board of Review of City of Newport
    • United States
    • United States State Supreme Court of Rhode Island
    • 31 Mayo 1967
  • Bouchard v. Bouchard
    • United States
    • United States State Supreme Court of Rhode Island
    • 30 Enero 1978
  • Shannon, In re
    • United States
    • United States State Supreme Court of Rhode Island
    • 16 Agosto 1973
    ......        After making the foregoing statements he referred to Edward v. City of Newport, 108 R.I. 1, 271 A.2d 464 (1970); Bouchard v. Bouchard, 102 R.I. 290, 229 A.2d 850 (1967); Barber Vehicle & Motor Co. v. Noel, 87 R.I. 460, 143 A.2d 281 (1958). He faulted petitioner for not ......
  • Parker v. Parker
    • United States
    • United States State Supreme Court of Rhode Island
    • 14 Febrero 1968
    ...... We shall, as we did in Bouchard......

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