Carvalho v. Carvalho
| Decision Date | 30 December 1963 |
| Docket Number | No. 3095,No. 10534,10534,3095 |
| Citation | 97 R.I. 132,196 A.2d 164 |
| Parties | Alexander H. CARVALHO v. Winnie A. CARVALHO. Ex. Eq. |
| Court | Rhode Island Supreme Court |
Kirshenbaum & Kirshenbaum, William Y. Chaika, Providence, for petitioner.
Joseph G. LeCount, Providence, for respondent.
This is a petition for an absolute divorce, alleging as grounds therefor extreme cruelty and continued drunkenness. It was heard, unanswered, by a family court justice, who entered a decision for the petitioner on the grounds alleged. The cause has been brought to this court by a bill of exceptions and claim of appeal, the respondent being uncertain as to the appropriate remedy.
The record discloses that the family court was established on June 3, 1961 by the adoption of P.L.1961, chap. 73, now G.L.1956, chap. 10 of title 8, as amended, but that the jurisdiction previously vested in the juvenile court was not transferred by said chap. 73 to the family court until September 1, 1961.
The record further establishes that on June 13, 1961, Alexander H. Carvalho brought the instant petition for divorce, returnable to the superior court on the first Monday in September 1961; that service was duly made on respondent and citation returned to the superior court on June 26, 1961; and that the papers in the cause were transferred at some time prior to September 1 to the family court.
It then appears that, respondent not having answered, after due notice a hearing was had on the unanswered petition in open court before a family court justice on January 11, 1962. At the close of the hearing he gave a decision from the bench granting petitioner an absolute divorce on the grounds alleged. A purported decree was entered pursuant thereto on January 15, 1962.
Thereafter, namely on July 9, 1962, within six months of said decision and purported decree, respondent filed a motion to vacate the decision and decree and reinstate the cause for hearing. The motion averred that since the petition was returnable to the superior court subsequent in time to the vesting of jurisdiction in the family court, respondent was misled into believing that no valid cause was pending against her and for that reason had refrained from entering an appearance or an answer. Within said motion there was contained a sworn statement that respondent had a meritorious defense, but no specific averment of such defense was set forth.
The petitioner demurred on the grounds that the motion failed to allege accident, mistake or unforeseen cause within the legal meaning thereof and that the affidavit of a meritorious defense was defective, lacking sufficiency in law. At a hearing thereon on November 16, 1962 the family court justice sustained the demurrer. He found that respondent had had ample time in which to make answer and had failed to show accident, mistake or unforeseen cause or to specifically set forth a meritorious defense.
The respondent thereupon gave notice of her intention to prosecute a bill of exceptions. The petitioner moved to dismiss on the ground that the proper remedy was by way of appeal and not by a bill of exceptions. The trial justice requested the parties to furnish briefs as to the proper appeal procedure and on February 21, 1963 granted petitioner's motion. To this decision respondent has prosecuted both a bill of exceptions and a claim of appeal being, in these circumstances, understandably uncertain as to the proper procedure.
We have heretofore referred to the family court justice as having entered purported decrees following his several decisions for the reason that it is well established that following a decision on a petition for an absolute divorce no decree is in order for six months following the entry of the decision. Smith v. Smith, 50 R.I. 278, 146 A. 626. The references in some of our decisions to 'decree nisi' or 'interlocutory decree' are misnomers. They are not decrees within the true legal meaning but rather are recorded entries of the decision.
It is equally well established that the proper procedure by which to seek a review in this court from a decision on a petition for an absolute divorce is by way of a bill of exceptions and not by a claim of appeal. Thrift v. Thrift, 30 R.I. 357, 75 A. 484; Scolardi v. Scolardi, 42 R.I. 456, 108 A. 651; Harrington v. Harrington, 66 R.I. 363, 19 A.2d 315; and Sullivan v. Sullivan, 68 R.I. 25, 26 A.2d 536. The respondent's claim of appeal therefore is dismissed pro forma and we shall proceed to consider the several issues raised by her bill of exceptions.
The first exception is to the decision of the trial justice sustaining petitioner's motion to deny and dismiss her bill of exceptions to the decision sustaining petitioner's demurrer. This court held in Johnston v. Johnston, 37 R.I. 362, 92 A. 983, that when a petition or motion to vacate is filed within the six months' period which must intervene before a decree is in order, it becomes part of the pleadings in the original cause and that, as in the case of an appeal from the decision on the merits, the proper remedy for review of a decision on a petition to vacate is by way of a bill of exceptions. The respondent's first exception therefore is sustained, pro forma, however, for the reason that her second exception is to the decision sustaining petitioner's demurrer.
It is contended by respondent, in support of this exception, that it would appear from the language employed by the legislature that process issued after June 3, 1961 and made returnable to the superior court after September 1, 1961 was invalid if it related to the jurisdictional functions transferred from the superior court to the family court as of September 1, 1961. She goes so far as to argue that the general assembly may have intended a hiatus during that time intervening between the third day of June and the first day of September 1961.
If we are to assume that the phraseology adopted by the legislature is open to the charge of ambiguity, we cannot subscribe to a proposition which would cloak a co-ordinate branch of the state government with an attitude of complete indifference to the potential impairment of property rights or distressing domestic problems in which the state has always had an interest. Rather, in our judgment the issuance of a citation and the forwarding of the papers in the cause by the superior court to the family court was within the contemplation of the...
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Rymanowski v. Rymanowski
...upon this jurisdiction, and to uphold the state's interest in maintaining regularity in divorce proceedings. Carvalho v. Carvalho, 97 R.I. 132, 196 A.2d 164, 595. However, when a domiciliary of this state relies upon a foreign divorce decree for a determination by this jurisdiction of his l......
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Pari v. Pari, s. 87-550-M
...may be a less stringent standard than that which is needed to set aside other types of default judgments. See Carvalho v. Carvalho, 97 R.I. 132, 137, 196 A.2d 164, 167 (1963). However, in both the Family Court and the Superior Court, unexplained neglect alone will not justify granting a mot......
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Parker v. Parker
...by the parents of his employer. The state is an interested party in maintaining the regularity of divorce proceedings. Carvalho v. Carvalho, 97 R.I. 132, 196 A.2d 164; Puhacz v. Puhacz, 55 R.I. 306, 180 A. 377. The family court may award a divorce from bed, board and future cohabitation for......
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Julie, In re
...to vacate the decree is less heavy than on a petitioner seeking to remove a default judgment. Pate v. Pate, supra; Carvalho v. Carvalho, 97 R.I. 132, 196 A.2d 164 (1963). Surely the state's interest can be no less in a termination proceeding than in a proceeding for an uncontested divorce. ......