Casey v. Casey, 82-353-A

• Decision Date: 30 May 1985
• Docket Number: No. 82-353-A,82-353-A
• Citation: 494 A.2d 80
• Parties: Barbara A. CASEY v. Richard K. CASEY. ppeal.
• Court: Rhode Island Supreme Court

Page 80

494 A.2d 80

Barbara A. CASEY v. Richard K. CASEY.

No. 82-353-Appeal.

Supreme Court of Rhode Island.

May 30, 1985.

John E. McCann, Kirshenbaum & Kirshenbaum, Providence, for plaintiff.

Donald R. Lembo, North Providence, for defendant.

OPINION

WEISBERGER, Justice.

This case comes before us on appeal from a judgment entered in the Family Court awarding Barbara A. Casey (wife) an absolute divorce on the grounds both of irreconcilable differences between the parties that have caused the irremedial breakdown of the marriage and of extreme cruelty on the part of Richard K. Casey (husband). The court awarded custody to the wife of a minor child of the parties who was seventeen years old at the time of the decision. The court further assigned to the wife the husband's interest in the marital domicile located in Cumberland, ordered the payment of child support until the child reached her majority, and additionally required the husband to pay alimony as well as his wife's counsel fees. We affirm the judgment in part but remand the case for further consideration in respect to the award of alimony and vacate the award of counsel fees.

In support of his appeal, the husband raises a number of issues that will be addressed in the order in which they appear in his brief. The facts pertinent to this appeal are as follows.

The husband and the wife, who had a child from a previous marriage, were married on July 20, 1959, and subsequently three children were born of the marriage. One of these children was still a minor at the time of the divorce proceedings. The husband has worked in the jewelry business for over twenty-five years as a stone setter. The wife has been employed in various capacities as a licensed practical nurse; and at the time of trial, she was employed as a registered nurse. According to the testimony elicited at trial, the marriage, which suffered in earlier years from a not-usual amount of discord, began seriously to deteriorate prior to the latter part of 1980, at which time the wife filed for divorce and the parties separated pursuant to an ex parte restraining order issued against the husband.

The first error asserted relates to the trial justice's determination that the fault for the deterioration of the marriage was attributable to the husband.

After hearing the voluminous testimony given in this bitterly fought divorce, the trial justice in his decision found that the husband had physically and verbally abused the wife for a number of years, had been guilty of excessive drinking, and had engaged in extramarital relationships with other women in contravention of his marriage covenant. The trial justice attached no weight to the testimony of two witnesses called on behalf of the husband, who had been hired by him as private detectives and who attempted to show that the wife had been less than faithful during the period after the separation of the parties but before the divorce was granted.

As an appellate tribunal, it is not our function to arrive at de novo findings and conclusions of fact based on the evidence presented at trial. As we have stated on many prior occasions, the trial court's findings will not be disturbed unless it is demonstrated that the trial justice was clearly wrong or that he misconceived relevant evidence. Wordell v. Wordell, R.I., 470 A.2d 665, 667 (1984) (citing Brierly v. Brierly, R.I., 431 A.2d 410, 414 (1981)). This same principle applies to the inferences drawn by a trial justice as well as to the credibility and weight that a trial justice attaches to the testimony of those presented as witnesses. In re Randy B., R.I., 486 A.2d 1071, 1073 (1985). A review of the record in this case establishes beyond question that after considering all of the evidence, including that of the four children whom he found to be credible and whose testimony ran distinctly counter to the position advanced by the husband, the trial justice was without error in arriving at his conclusion with respect to marital fault.

The second issue raised on appeal is the husband's challenge to the propriety of the award compelling him to assign to his wife his equitable interest in the marital domicile, of which he was an owner with her in joint tenancy. The husband advances three arguments in support of his claim of error in respect to the trial justice's assignment. None, however, is persuasive.

First, the husband asserts that Rhode Island's equitable-distribution statute contains language that should be interpreted to prevent a trial justice from assigning all of the estate of one spouse to the other spouse. Since the husband's entire interest in the marital domicile was ordered to be transferred to his wife, the husband claims that this order contravened the language of G.L. 1956 (1981 Reenactment) § 15-5-16.1, which provides,

"[i]n addition to or in lieu of an order to pay alimony made pursuant to a petition for divorce, the court may assign to either the husband or wife a portion of the estate of the other." (Emphasis added.) ¹

We need not address at length the husband's argument here for the very obvious reason that even though the husband was ordered to give up his interest in the marital domicile, such interest did not make up his entire estate. In fact, the husband was awarded a bond fund secured in his name, a portion of a vested pension fund at his former place of employment, a coin collection, and his automobile under the terms of the division of the marital assets. We find no abuse of discretion here by the trial justice, who, within the bounds of his statutory discretion, awarded the wife a portion (significant as it may have been to the husband) of the husband's estate after considering each element of the statutory criteria of § 15-5-16.1. ²

A second argument suggested by the husband in challenging the trial justice's assignment is that in light of the fact that the husband earned approximately 3 1/2 times as much as the wife during the last nine years of the marriage, such increased earnings should have been accorded more weight in the trial justice's determination of what had been contributed by the parties toward the "acquisition, preservation, or appreciation in value" of the parties' estate. Section 15-5-16.1. In addressing this claim, we note that the record discloses that the trial justice, in assigning the marital assets of this couple, was acutely aware of the fact that the husband earned more than the wife. Nevertheless, the trial justice, in making the assignment, considered with equal weight the value of the wife's services as a homemaker as well as the amounts contributed by her from the various jobs she held as a nurse during the course of the marriage. In so doing, he committed no error in light of our existing law on this subject. In this state we recognize that a spouse who is not the principal wage earner but who has acted in the capacity of homemaker and child-rearer, or who has made other nonmonetary contributions enhancing the marital relationship, may be granted an award in the exercise of the trial justice's discretion based upon these contributions after consideration of all of the factors enumerated under our equitable-distribution statute. ³ In the instant case, the record discloses that the trial justice acted well within the dictates of the statute.

A final claim by the husband with respect to the assignment is that the trial justice weighted the element of fault too heavily before ordering the assignment of the husband's interest in the marital domicile. We note that although the trial justice adverted to the husband's fault as a dominant reason for the dissolution of the marriage in another section of his decision, there is nothing in the trial justice's decision in respect to the assignment of the parties' estate to indicate that fault was accorded undue significance in comparison with the other elements that the trial justice both considered and enumerated under the equitable-distribution statute.

We next address the husband's claim that the trial justice erred in ordering the husband to pay alimony of $25 a week. In support of his argument the husband urges that the trial justice ordered payment without regard to any of the criteria outlined in G.L. 1956 (1981 Reenactment) § 15-5-16. Although such sweeping criticism of the trial justice in respect to this issue is...