Cavanagh v. Cavanagh

• Decision Date: 02 December 1977
• Docket Number: No. 75-326-A,75-326-A
• Citation: 119 R.I. 479,380 A.2d 964
• Parties: Violet M. CAVANAGH v. Robert D. CAVANAGH. ppeal.
• Court: Rhode Island Supreme Court

Page 964

380 A.2d 964

119 R.I. 479

Violet M. CAVANAGH v. Robert D. CAVANAGH.

No. 75-326-Appeal.

Supreme Court of Rhode Island.

Dec. 2, 1977.

[119 R.I. 486] Robert H. Breslin, Jr., Warwick, for petitioner.

George Ajootian, Providence, for respondent.

OPINION

PAOLINO, Justice.

This action is before us on appeals taken by the respondent from three separate decrees of the Family Court relating to a parcel of real estate owned by the parties. After declaring their marriage void, the Family Court attempted to partition the subject property, which is presently being managed by receivers appointed by the Family Court. Because of the similarity of the issues underlying the three appeals, we ordered them to be consolidated. Cavanagh v. Cavanagh, R.I., 376 A.2d 1068 (1977).

The events which led to the present state of affairs are set out in Cavanagh v. Cavanagh, R.I., 375 A.2d 911 (1977), in which we affirmed an earlier decree in this matter, holding that the Family Court had jurisdiction to settle the dispute over title to the property and to order it partitioned. That earlier decree was entered on May 16, 1975, and our decision affirming it was filed on July 15, 1977. The appeals before us now concern actions taken by the Family Court during the interim period.

During that period the following events transpired. On the same day the Family Court decree of May 16, 1975, was entered, respondent filed his notice of appeal from that decree and also ordered transcripts of certain hearings. In June, however, he also filed a petition for removal in the Federal District Court, alleging that he was being denied his civil rights in Family Court because Rhode Island domestic law favored females. As required by the federal removal statute, 28 U.S.C.A. § 1446 (1973), respondent filed a copy of the petition with the Family Court and he certified that he had also mailed copies to petitioner's attorneys.

The District Court eventually determined that it did not have jurisdiction over the case, but while the petition was pending, the Family Court continued to hear motions regarding the disposition of the real estate. By an order entered on October 17, 1975, the court took the following actions: (1) it determined fees for petitioner's two former attorneys who had withdrawn, the fees to be paid out of the disputed property; (2) it allowed petitioner's new attorney to enter his appearance; and (3) it appointed her new attorney as a coreceiver of the property.

The respondent filed a notice of appeal from that order on October 24, 1975, and that appeal is one of the three before us now.

On January 21, 1976, the Federal District Court, based on its decision that the case was improperly removed, entered an order remanding the case to the Family Court. Shortly thereafter one of the receivers/commissioners filed a motion there for consideration of an earlier motion to sell the real estate. The respondent at that time was still in the process of perfecting his appeal from the May 16, 1975 decree. On February 23, 1976, the papers, transcript, and exhibits of the case were transmitted to this court and the appeal was docketed. The Family Court nonetheless heard the motions to sell and entered a decree on March 19, 1976, directing the receivers/commissioners to sell the property to the highest bidder of $200,000 or more. The respondent filed a notice of appeal from this decree on March 22, and that appeal is the second one before us now.

When the receivers found a willing buyer who could pay the required deposit, the court entered another decree on April 15, 1976, ordering the sale to that bidder. Shortly thereafter respondent filed a notice of appeal from this decree, and that appeal is the third one before us now.

On May 12, 1976, we ordered a stay of enforcement of all decrees relating to the sale of the real estate during the pendency of respondent's appeal. Cavanagh v. Cavanagh, R.I., 357 A.2d 451-52 (1976). As mentioned above we decided respondent's original appeal on July 15, 1977, and affirmed the decree of May 16, 1975, which settled title to the real estate. We then ordered the consolidation of the three appeals which had accumulated up to that time, and we continued the stay of the sale of the property until those appeals could be decided. Cavanagh v. Cavanagh, R.I., 376 A.2d 1068 (1977).

The consolidated appeals are now before us on respondent's contention that the decrees appealed from are void for lack of jurisdiction in the Family Court at the times they were entered.

I

The respondent argues first that the Family Court had no jurisdiction to act while his petition for removal was pending in the federal court, that is from June of 1975 when he filed his removal petition until January 21, 1976, when the court ordered the case remanded. He thus contends that the order of October 17, 1975, appointing an additional receiver and setting counsel fees to be charged to the real estate, is void. ¹

There is no question that respondent complied with the statutory procedure for removing the case from Family Court to the Federal District Court. ² The petitioner argues, however, that since the case was not removable, and the federal court so determined, the order entered by the Family Court during the period in question is valid. In effect she contends that actions taken by a state court while a petition for removal is pending are not void but only voidable, depending on the federal court's decision on the petition.

This statement of the law may have been true at one time, but the present law regarding removal is otherwise. Cases and commentary agree that under the 1948 revision of the Federal Judicial Code, once the removal procedure has been carried out, the action in the state court is automatically stayed and any proceedings there prior to a federal remand order are absolutely void, despite a subsequent determination that the removal petition was ineffective. South Carolina v. Moore, 447 F.2d 1067, 1072-73 (4th Cir. 1971); Davis v. Davis, S.C., 229 S.E.2d 847, 848 (1976); 1A Moore, Federal Practice P 0.168 at 504-14 (2d ed. 1974); 14 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3737 at 742-44 (1976); contra, Styers v. Pico, Inc., 236 Ga. 258, 259, 223 S.E.2d 656, 657 (1976) (dictum).

That the present law on removal presents opportunities for abuse by a litigant seeking to delay a pending action is well recognized, South Carolina v. Moore, supra at 1074; 14 Wright, Miller & Cooper, supra at 744-45, but it is also recognized by those same authorities that the solution is a matter for federal legislation. On the present state of the law, therefore, we are bound to hold that the decree entered on October 17, 1975, is void.

II

After the case was remanded by the federal court, the Family Court entered the second and third decrees which are now before us. ³ As mentioned above, these decrees ordered the sale of the property and were entered after respondent's earlier appeal was docketed here and the papers of the case were transmitted to this court.

The respondent contends that these decrees were void as the Family Court could not validly order the sale of property while he was appealing the very decision upon which the sale was predicated. The petitioner answers that although the case was on appeal, the lower court retained the power to act as it did because the orders for sale were the type of action which remains in the jurisdiction of a lower court even while a case is on appeal.

Initially we have difficulty accepting the characterization of these orders that petitioner urges on us. We believe first that it is stretching the facts to argue that the sale of the property was ordered to further the appeal and to aid its presentation. That concept...