Brierly v. Brierly

• Decision Date: 23 June 1981
• Docket Number: Nos. 78-151-A,s. 78-151-A
• Citation: 431 A.2d 410
• Parties: Virginia A. BRIERLY v. Raymond F. BRIERLY, Jr. ppeal, 79-483-Appeal.
• Court: Rhode Island Supreme Court

Page 410

431 A.2d 410

Virginia A. BRIERLY v. Raymond F. BRIERLY, Jr.

Nos. 78-151-Appeal, 79-483-Appeal.

Supreme Court of Rhode Island.

June 23, 1981.

Carolyn Roundey, Rhode Island Legal Services, Inc., Providence, for petitioner.

Kirshenbaum & Kirshenbaum, Alfred Factor, Providence, for respondent.

OPINION

BEVILACQUA, Chief Justice.

These are consolidated appeals taken by the defendant from a decree of the Family Court adjudging him in contempt for failure to comply with the provisions of a temporary order restraining him from entering the marital domicile and interfering with and harassing the plaintiff, and from a final decree granting the plaintiff an absolute divorce on the ground of extreme cruelty.

On January 6, 1976, plaintiff, Virginia A. Brierly, filed a petition for a bed-and-board divorce on the ground of extreme cruelty. The plaintiff requested that she be awarded custody of and support for the minor children, Christopher and Stacey, as well as support for herself, exclusive use of the marital domicile, and that defendant be restrained from annoying, molesting, or harassing plaintiff. On February 2, 1976, by consent of the parties, a temporary order was entered by the court awarding custody of the minor children to plaintiff with reasonable rights of visitation to defendant, allowing plaintiff to maintain exclusive use of the marital domicile, and ordering defendant to pay $150 per week for the support of plaintiff and the minor children.

Prior to the hearing on plaintiff's petition for a bed-and-board divorce, she filed a motion to amend the petition to one of absolute divorce. Additionally, both parties filed various motions to have each other adjudged in contempt and defendant also filed a motion to modify and amend the temporary order.

On April 3, 1978, after considering all the motions filed, the trial justice adjudged defendant in contempt for failure to comply with the order entered on February 2, 1976, restraining him from entering the marital premises and enjoining him from striking and molesting plaintiff. The trial justice thereby ordered that in the event defendant was found in contempt of court orders in the future, he would be incarcerated for fifteen days. The trial justice, however, suggested that defendant could purge himself of the contempt by complying with all standing orders of the court. The defendant thereupon appealed from this order.

On January 11, 1979, a hearing on the merits was commenced and after hearing the evidence presented, the trial justice granted plaintiff's petition for divorce on the ground of extreme cruelty and awarded custody of the minor children to plaintiff with reasonable rights of visitation to defendant. In addition, the trial justice awarded plaintiff the exclusive use of the marital domicile and, relying on a finding that defendant was capable of earning at least $17,500 per year, ordered defendant to pay plaintiff $35 per week in alimony and $35 per week in support for each child. Additionally, the trial justice decreed that all arrearages would constitute a lien against defendant's equitable interest in the marital domicile.

The defendant in his appeal raises several issues: (1) that the trial justice abused his discretion in adjudging him in contempt, (2) that plaintiff failed to establish that she was a domiciliary of the State of Rhode Island for a period of one year next prior to the filing of the petition, (3) that the trial justice was wrong in not allowing the minor child of the parties to testify under oath or to be cross-examined, (4) that the evidence was insufficient to support the granting of the divorce on the ground of extreme cruelty, (5) that the order of support was not based upon findings supported by the evidence, and (6) that the trial justice had no authority to establish a lien against defendant's equitable interest in the marital domicile for the purpose of securing past and present support orders.

I

Initially, defendant contends that the trial justice abused his discretion when he adjudged defendant in contempt of the February 2, 1976 order. The defendant asserts that the trial justice acted arbitrarily and capriciously and disregarded the evidence presented.

Essentially, the matter of determining and dealing with contempt is within the sound discretion of the trial justice, "to be exercised in accordance with particular facts and findings as to the extent and willfulness of (defendant's) contempt for the authority and dignity of the court." Shonting v. Shonting, R.I., 374 A.2d 797, 798 (1977) (quoting Hartwich v. Hartwich, 82 R.I. 54, 57, 105 A.2d 821, 823 (1954)); Tente v. Tente, 112 R.I. 636, 639, 314 A.2d 149, 151 (1974). We have often stated that findings of fact by a trial justice regarding matters of contempt will not be disturbed on appeal unless the findings are clearly wrong or the trial justice abused his discretion. See King v. King, 114 R.I. 329, 332-33, 333 A.2d 135, 138 (1975); Tente v. Tente, 112 R.I. at 639, 314 A.2d at 151. On the conflicting testimony presented in the instant case, the trial justice found that defendant had in fact entered the marital domicile and had struck, molested, and harassed plaintiff in violation of the order of the court. Upon reviewing the record, we are of the opinion that the trial justice was not clearly wrong, nor did he abuse his discretion in adjudging defendant in contempt.

II

The defendant next contends that the Family Court lacked jurisdiction to consider the divorce petition because defendant had not sufficiently established domicile by clear and convincing evidence. The defendant claims that to establish domicile, one must prove actual residence and an intention to remain indefinitely. Because plaintiff presented evidence only in regard to actual residence and no evidence of intention to remain indefinitely, defendant thereby argues that plaintiff has failed to sustain her burden of proof concerning domicile.

The plaintiff concedes that proof of domicile requires more than a mere showing of actual residence. She asserts, however, that the mere failure to use the word "domicile" or the lack of express declarations of intent to remain indefinitely are not necessarily determinative of whether or not she has sustained her burden of proving domicile.

General Laws 1956 (1969 Reenactment) § 15-5-12, as amended by P.L.1979, ch. 373, § 11, states that no complaint for divorce will be entertained by the Family Court unless the plaintiff is a domicile inhabitant of this state and has resided herein for a period of one year prior to the filing of such complaint. Accordingly, to establish domicile pursuant to said statute, we have determined that one must be an actual resident in the state and one must demonstrate a good faith intention to live here permanently. McCarthy v. McCarthy, 45 R.I. 367, 369, 122 A. 529, 531 (1923). Moreover, plaintiffs must prove domicile by clear and convincing evidence. Parker v. Parker, 103 R.I. 435, 441, 238 A.2d 57, 60 (1968). We have posited, however, that the truth of the intention is to be determined upon consideration of all the evidence and that "(a)ctions as well as declarations are to be weighed in the determination of the intention." McCarthy v. McCarthy, 45 R.I. at 370, 122 A. at 531.

In the instant case, there is no question that plaintiff had been a resident of Rhode Island for at least one year prior to the filing of her petition for divorce. In fact, the record discloses corroborated testimony that plaintiff had resided in Rhode Island for over ten years. Additionally, the record reveals that plaintiff maintained a bank account in Rhode Island, retained a Rhode Island registration on her automobile, was a communicant at a Rhode Island church, and sought exclusive use of the marital domicile in her divorce petition all actions indicative of an intention to remain indefinitely. Consistent with our prior holdings, all these actions should be considered in determining intent. Thus, a reading of the record clearly manifests that plaintiff met her burden of proving domicile by clear and convincing evidence.

III

Next, defendant claims that it was reversible error for the trial justice to admit the unsworn testimony of the nine-year-old son of the parties without establishing first that the minor child understood the obligations of an oath. Furthermore, defendant contends that he should have been afforded the opportunity to cross-examine the child. In essence, defendant questions the competency of the minor child to testify.

Whether a minor child is competent to testify is a decision that rests primarily with the trial justice who is in a better position to observe the manner of the proposed witness and also the witness's apparent possession of or lack of intelligence. Moreover, the trial justice can resort to any examination of the witness that will disclose his intelligence and his capacity to understand the obligations of an oath. On review, a trial justice's decision will not be disturbed unless the record discloses that it was clearly erroneous. Wheeler v. United States, 159 U.S. 523, 524-25, 16 S.Ct. 93, 93, 40 L.Ed. 244, 247 (1895). In such circumstances we have likewise stated that "(c)onsiderable latitude must be left to the trial justice on a matter like this, because so much depends upon the impression that the child makes by his behavior on the witness stand." Pierce v. New England Telephone & Telegraph Co., 86 R.I. 326, 330, 134 A.2d 421, 423 (1957); see State v. Mandarelli, 105 R.I. 696, 701, 254 A.2d 738, 741 (1969).

Similarly, we have held consistently that the scope and extent of cross-examination is subject to the exercise of the trial justice's sound discretion. State v. Anthony, R.I., 422 A.2d 921, 924 (1980); State v. O'Brien, R.I., 412 A.2d 231, 233 (1980). On review, we shall not disturb the determination of the trial justice absent a clear abuse of discretion. Burns v. Janes, R.I., 398 A.2d...