Cavanagh v. Cavanagh

• Decision Date: 15 July 1977
• Docket Number: No. 75-326-A,75-326-A
• Citation: 375 A.2d 911,118 R.I. 608
• Parties: Violet M. CAVANAGH v. Robert D. CAVANAGH. ppeal.
• Court: Rhode Island Supreme Court

Page 911

375 A.2d 911

118 R.I. 608

Violet M. CAVANAGH v. Robert D. CAVANAGH.

No. 75-326-Appeal.

Supreme Court of Rhode Island.

July 15, 1977.

[118 R.I. 627] Breslin, Sweeney & Gordon, Robert H. Breslin, Jr., Warwick, for petitioner.

George Ajootian, Providence, for respondent.

OPINION

PAOLINO, Justice.

This is an appeal by the respondent from a decree entered in the Family Court on May 16, 1975. The parties had been divorced but the case continued as they tried to determine the disposition of certain property standing in their names as tenants by the entirety which was placed in receivership when the divorce decree was entered. After hearings on several motions involving the respective rights of the parties to the real estate in question, the Family Court entered a decree on May 16, 1975, from which the respondent filed the instant appeal.

In September 1954 the parties entered into marriage. This was not the first for petitioner, but she and respondent both believed that her previous marriage had been ended by a final decree of divorce. In fact, a final decree from her previous marriage had never been entered.

In May 1963 the Cavanaghs bought a parcel of real estate in Little Compton, Rhode Island, consisting of a house and about 50 acres of farm land and other improvements. They moved there with their children and operated the farm. This property is the subject of the present litigation.

The relationship apparently deteriorated and on December 14, 1971, Mrs. Cavanagh petitioned for divorce alleging extreme cruelty. At that time, the Family Court granted her requests to enjoin Mr. Cavanagh from entering the land and from physically abusing her. The court also granted her custody of the children, use of the home, and an allowance from Mr. Cavanagh. Although these orders have since been the subject of innumerable motions either for amendment or for enforcement, they still to this day essentially govern relations between the parties. The petitioner eventually sought to have the property partitioned by sale.

Mr. Cavanagh at first moved to dismiss the divorce petition because of petitioner's prior marriage. That motion was denied without prejudice and he then filed a motion in the nature of a cross-petition for a decree declaring the marriage void. He also opposed the petition to partition the land saying that property held by tenants by the entirety cannot be partitioned. He later moved to void the deed to the property for fraud and for bigamy.

After a variety of other motions were presented to the court, an interlocutory divorce decree was entered on February 12, 1973. Mrs. Cavanagh's divorce petition was denied and dismissed and Mr. Cavanagh's cross-petition to declare the marriage void was granted. Custody of the children was to be decided at another time. Two receivers were appointed to manage and control the parties' property pending the outcome of the litigation. No appeal was taken by either party.

A final decree was entered on August 8, 1973. Custody was again left open and it appears that nothing permanent has ever been decided as far as the children are concerned. The respondent attempted to appeal from this final decree, but his appeal was denied on February 28, 1974, Cavanagh v. Cavanagh, 112 R.I. 946, 315 A.2d 757 (1974). ¹

Following the divorce decree, the litigation focused on the rights of the parties in the estate. The receivers sought court permission to sell the property, as they had since shortly after their appointment in February 1973. The petitioner joined in this request, saying the family needed the money to meet expenses.

The respondent, on his part, sought to reverse everything the court had ordered, particularly the receivership, and he also sought to have the trial justice disqualified for alleged bias and misconduct.

During 1974, the Family Court heard arguments concerning the disposition of the real estate. On February 7, 1975, the trial justice filed his decision. As stated in that decision, the court found that petitioner had practiced no fraud in attempting to enter into marriage with respondent. Both of them had believed her divorce had been final and Mrs. Cavanagh had not intentionally concealed any facts from Mr. Cavanagh. Although a legal marriage had never existed because of the prior marriage, the court said a "de facto marriage" had arisen after all the years they have lived and worked together.

The court found that the estate had been enhanced by the joint efforts of the parties. Since no fraud was proven, the court rejected respondent's contentions that petitioner should be denied any rights in the property or that a constructive trust should be imposed on her share of the estate and he refused to remove the restraints placed on the property. The court concluded that petitioner owned her share of the property as a tenant in common with respondent. The judge refused to rescind the receivership and he ordered the coreceivers and cocommissioners to carry out their duties. Finally, the judge refused to disqualify himself as requested by respondent.

On March 6, 1975, the trial justice entered an order for the receivers and commissioners to appoint two appraisers for the property and to present their appraisals to the court for instructions. On the same day, respondent filed a notice of appeal from that order and from the February 7, 1975 decision. ²

On May 16, 1975, the court entered its decree embodying the decision of February 7. The respondent, on that same day, filed notice of appeal from that decree and it is this appeal which is presently before us. ³

The respondent raises two issues on appeal which he raised by motion and argument below: that the Family Court was without jurisdiction to try title to the land, and that the trial justice was biased. He raises two other issues for the first time in this appeal: that his former attorneys should be disqualified from acting as receivers, and that any actions taken by the court while sitting in Providence instead of Newport are void, because the provisions of G.L.1956 (1969 Reenactment) § 15-5-13, as amended by P.L.1969, ch. 65, § 1 on changing venue in divorce actions were not complied with.

By motion filed in this court on February 16, 1977, respondent also argued that the Family Court had no jurisdiction to act after August 29, 1973, when he appealed from the final divorce decree, and from June 23, 1975, when he filed a petition for removal in Federal District Court, until January 21, 1976, when the Federal District Court remanded the matter to the Family Court. Although respondent did not raise these questions below, jurisdictional defects are not waived by the failure of the parties to raise them timely. See Beacon Milling Co. v. Whitford, 92 R.I. 253, 258, 168 A.2d 279, 281 (1961). In this opinion, however, we consider only jurisdictional issues which may affect those actions taken before May 16, 1975, the date of entry of the decree being appealed here. We leave to a later appeal, if any, the question of the Family Court's jurisdiction to act after May 16, 1975, when this present appeal was pending (see note 3 supra ). We also leave until the appropriate appeal respondent's contention that the court erred in exercising jurisdiction while his petition for removal was pending in Federal District Court. Because that petition was filed after May 16, it did not affect the decree now on appeal.

As far as our own jurisdiction in this case, we believe the decree determining the property rights of the parties has such elements of finality that it is properly before us at this stage of the litigation. McAuslan v. McAuslan, 34 R.I. 462, 472, 83 A. 837, 841 (1912).

I. Family Court Jurisdiction Pending Appeal

The respondent seeks first to vacate all orders entered by the Family Court after August 29, 1973. His contention is that upon his filing a notice of appeal from the divorce decree entered on August 8, the case was removed from Family Court jurisdiction to Supreme Court jurisdiction and any subsequent orders by the Family Court were void.

We note first, as we did above, that respondent's appeal from that final decree was denied in February 1974 so that only actions taken during the period from August to February are at issue. Second, the decree entered on August 8 was a final divorce decree which was not reviewable upon appeal, G.L.1956 (1969 Reenactment) § 14-1-52, as amended by P.L.1972, ch. 169, § 28; see also DeLuca v. DeLuca, 72 R.I. 34, 47 A.2d 915 (1946), so that the cause in divorce was not properly brought before us and we were without jurisdiction to review it, see Tobin v. Tobin, 70 R.I. 362, 370, 38 A.2d 756, 760 (1944). Jurisdiction therefore remained in the Family Court throughout the period in question.

Similarly, respondent's notice of appeal of March 6, 1975, did not remove the case from Family Court jurisdiction. ⁴ The attempted appeal was taken from two actions of the court. First was the February 7 decision of the court which was not reviewable until embodied in a decree on May 16 (which decree is presently on appeal). Culpepper v. Martins, 96 R.I. 328, 331, 191 A.2d 285, 287 (1963); see also Poirier v. Poirier, 107 R.I. 345, 350 n. 1, 267 A.2d 390, 393 n.1 (1970); Botelho v. Botelho, 96 R.I. 379, 380, 192 A.2d 5, 6 (1963).

The second was a decree entered on March 6 ordering the receivers and commissioners to appoint two appraisers. That decree also was not reviewable. It was not final and did not come within either the statutory exceptions, § 9-24-7, or the common law exception, McAuslan v. McAuslan, supra, to the rule that only final decrees are reviewable, § 14-1-52, as amended by P.L.1972, ch. 169, § 28.

Thus, because the March 6, 1975 appeal was premature and the August 29, 1973 appeal was too late, jurisdiction did not vest in this court before May 16, 1975. The Family Court, then, had jurisdiction over this case when it entered the decree which is now on appeal....