Cheetham v. Cheetham, s. 77-93-A

• Decision Date: 26 February 1979
• Docket Number: Nos. 77-93-A,s. 77-93-A
• Citation: 121 R.I. 337,397 A.2d 1331
• Parties: William H. CHEETHAM v. Marie A. CHEETHAM. ESTATE of William H. CHEETHAM. ppeal, 77-127-Appeal.
• Court: Rhode Island Supreme Court

Page 1331

397 A.2d 1331

121 R.I. 337

William H. CHEETHAM v. Marie A. CHEETHAM ESTATE of William H. CHEETHAM.

Nos. 77-93-Appeal, 77-127-Appeal.

Supreme Court of Rhode Island.

Feb. 26, 1979.

[121 R.I. 343] Francis J. Maguire, Providence, for plaintiff.

John F. Sherlock, Jr., Providence, for defendant.

OPINION

WEISBERGER, Justice.

These are consolidated appeals in two cases arising out of a domestic dispute. The first case is before us on appeal from a judgment of dismissal without prejudice of an action brought by William H. Cheetham (plaintiff) by reason of failure to join or secure ratification of the plaintiff's conservator. The second case involves an appeal from a decree of the Probate Court of the City of Pawtucket to the Superior Court where the plaintiff, as appellant, sought summary judgment declaring the prior conservatorship proceedings to be null and void. That case is before us on the plaintiff's appeal from an order denying his motion for summary judgment. The order was clearly interlocutory, but in the light of our disposition, we need not address this appeal on its merits. For purposes of this opinion, we shall treat these two cases as one controversy. A recitation of the facts as set forth in the case records and by the parties in their briefs may be of assistance in understanding the procedural morass in which the litigants have become engulfed.

A complaint was filed by plaintiff against his wife on March 2, 1971. The parties have since been divorced. The plaintiff claims that he was the sole owner of a funeral business and was assisted by his wife in its operation. The business is located on real estate jointly owned by plaintiff and defendant.

During the period 1965 to 1967, plaintiff became ill. The exact nature of his illness and its effect upon his competency is disputed. The plaintiff alleges that on June 30, 1967, defendant by duress and undue influence obtained from him a power of attorney which permitted her to take over and control his funeral home business. He alleges that she is still holding this property and refuses both to return control of it to him and to return the power of attorney. He asserts in his complaint that defendant former wife has excluded him from the funeral home and that she refuses to account for the financial condition of the business. He seeks such an accounting.

Additionally, plaintiff accuses defendant and her attorney of conspiring to have him deprived of his freedom during the period from 1965 to 1968. He claims that he was confined against his will in the State Institute of Mental Health, Chapin Hospital and other institutions by virtue of the actions of his wife. For this confinement he seeks money damages from defendant.

The defendant denies all of plaintiff's allegations and has filed a counterclaim seeking partition of the marital domicile which also houses the funeral home business which she has been operating since plaintiff became ill.

The case was originally reached for trial in the Superior Court on February 1, 1972. The trial justice appointed a special master to audit the records of the funeral home business over plaintiff's objection. On appeal we held that the appointment of a master was premature and inappropriate prior to the resolution of certain legal issues, and we remanded the case for determination of such legal issues before any accounting should take place. Cheetham v. Cheetham, 114 R.I. 466, 335 A.2d 327 (1975).

Upon remand the case was presented to a different trial justice whose determination is presently in issue. He heard this matter beginning July 8, 1975, without the intervention of a jury. During the course of these hearings, the trial justice became aware that plaintiff had been under conservatorship since June 26, 1968 by virtue of a decree of the Probate Court of the City of Pawtucket. The plaintiff suggests that the conservator, Mr. Clifford Weldon, was appointed as a result of a petition signed by plaintiff and filed in the probate court by plaintiff's former attorney. The plaintiff further suggested at oral argument that the conservator was also a patient in the State Institute of Mental Health at the time of his appointment and that he has not carried out any function as conservator since the time of his selection. ¹ The plaintiff asserts that he has been unable to discover the whereabouts of this erstwhile conservator.

The trial justice in the Superior Court, upon discovering the existence of the conservatorship, interrupted the trial in order to permit the parties to take steps in the probate court to seek ratification by the then-existing conservator or a successor conservator of the filing and prosecution of the pending complaint.

In the probate court plaintiff attempted to terminate the conservatorship by filing a final account in his own name. Meanwhile, a claim had been filed by plaintiff's former attorney against the conservatorship estate in the sum of $6,800. The probate judge of the city of Pawtucket entered a decree dated August 29, 1975, which reads as follows:

"It appearing that petitioner has no need of such Conservator, it is ORDERED and DECREED that he be discharged therefrom and the said Conservator is discharged but with petitioner's rights as prayed, if any being preserved, further the Court makes specific reference to the judgment and order in William Cheetham vs. Clifford Weldon, Conservator of Estate of William H. Cheetham. Subject to an accounting being filed, Mr. Cheetham waiving such accounting."

Upon resumption of the trial in the Superior Court, the clerk of the Probate Court of the City of Pawtucket indicated that the conservatorship had not been terminated because the court had never approved the final account for several reasons, including the fact that it had been filed by the ward and not by the conservator, and the additional fact that an outstanding claim had neither been disallowed nor compromised. This testimony was buttressed by a letter from the probate judge to a similar effect.

Upon learning of these circumstances, the trial justice in the Superior Court dismissed the complaint without prejudice on the ground that a ward could not bring and maintain an action in his own name, without the...