Ciallella v. Ciallella, 2223

• Citation: 103 A.2d 77,81 R.I. 320
• Decision Date: 18 February 1954
• Docket Number: No. 2223,2223
• Parties: CIALLELLA v. CIALLELLA. Eq.
• Court: United States State Supreme Court of Rhode Island

Page 77

103 A.2d 77

81 R.I. 320

CIALLELLA v. CIALLELLA.

Eq. No. 2223.

Supreme Court of Rhode Island.

Feb. 18, 1954.

Higgins, Kingsley & Williamson, Arnold Williamson, Jr., Providence, for petitioner, Angelina Ciallella.

Paul B. McMahon, Providence, for respondent, Carmen William Ciallella.

FLYNN, Chief Justice.

This proceeding was brought by a wife to have her former husband held in contempt for failure to make payments as ordered by a final decree of divorce. After a hearing before a justice of the superior court, a decree was entered finding the husband to be in contempt and permitting him to purge himself by making payments as specified therein. From that decree he has prosecuted an appeal to this court.

It appears that Carmen William Ciallella originally brought a petition for absolute divorce against his wife Angelina Ciallella, who filed a cross-petition thereto. After a hearing in the superior court a decision was rendered denying the husband's petition, granting the wife's amended cross-petition, awarding her the custody of their two minor children, Rita and William Ciallella, and ordering him to pay $25 weekly for the support of herself and said children. He was also ordered to pay for the instruction and education of the daughter Rita. The petitioner in the divorce case, Carmen William Ciallella, is the respondent in the instant proceeding.

On December 13, 1945 a final decree of divorce was entered in the superior court in favor of the wife in accordance with the above decision. The pertinent part thereof ordered and adjudged that the custody of the two minor children of the parties be awarded to the wife; that beginning June 4, 1945 the husband pay to her the sum of $25 weekly for the support of herself and said children; and that he also pay for the instruction and education of the daughter Rita.

At the time the decree was entered the son William was nineteen and the daughter Rita seventeen years old. With the exception of some delays or irregularities which are not important here, the weekly payments of $25 as ordered were made for several years. The respondent did not stop the payments after January 1949 when both children had become twenty-one years of age. Nor did he then or later seek any modification of the final decree. He continued to make such payments under the decree until about June 6, 1952, after which time he made none. It was agreed by the parties that if he was legally required to make the $25 weekly payments he was in arrears to the amount of $795 as of the date when petitioner filed the instant petition to hold him in contempt.

There was evidence dealing with petitioner's ill health and the need for the full amount of $25 for her own support, which was not expressly denied, and also other evidence as to respondent's increased obligations because of another marriage, his indebtedness incurred in business, and his own health, all bearing on the questions of petitioner's support and respondent's claim that he was unable to pay. In view of our conclusion it is unnecessary to set out this evidence in detail.

The trial justice found that respondent admittedly was in arrears in his payments under the final decree of divorce; that as a matter of law the amounts which had already accrued thereunder could not be disturbed; and that in the absence of a motion to modify the decree as to future payments, which motion respondent's counsel declined to file, there was no adequate reason on the evidence of record to make any different order for petitioner's future support. Consequently a decree was entered January 20, 1953 finding respondent to be in contempt and permitting him to purge himself by paying the indebtedness of $795 at the rate of $100 a month, and by paying petitioner $100 as counsel fee within thirty days of the entry of the decree. The instant appeal is from that decree.

The respondent contends in substance that divorce is a purely statutory proceeding; that the court's jurisdiction thereunder in regard to the custody and allowances for support of children of divorced parties is restricted to minor children; and that therefore any order, if it purported to require payment for the children's support after they became twenty-one years of age, would be without, or at least in excess of, the court's proper jurisdiction.

In this connection it is argued that the decree ordering payments for the support of the children should be construed with and limited by the other provision which awarded to petitioner the custody of the two minor children of said parties, and that such interpretation would be consistent with the expressed intention of the parties and the court's proper jurisdiction. He further argues that here the weekly payment of a lump sum was clearly intended to cover two purposes, that is, alimony for petitioner and allowances for the support of the two children until the younger one had reached the age of twenty-one years; that upon that eventuality in 1949 respondent no longer was legally bound to pay the full $25 weekly because that sum included the children's support as well as alimony; and that payments for petitioner's alimony alone would necessarily be less than the total amount which the court had awarded for the support of all three.

On these premises he concludes that the court erred in failing to first determine and allocate the proper amounts that were intended for alimony and support respectively under the final decree, and in refusing to give retroactive effect to such an allocation as of the date when the younger child had reached the age of twenty-one years. If such allocation were made, he claims, the court should have credited as overpayments on petitioner's alimony all that part of $25 which was...