Cok v. Cok, 82-396-A
| Decision Date | 25 July 1984 |
| Docket Number | No. 82-396-A,82-396-A |
| Citation | 479 A.2d 1184 |
| Parties | Gladys L. COK v. Leo COK. ppeal. |
| Court | Rhode Island Supreme Court |
This case comes before us on appeal by Gladys L. Cok (wife) and Leo Cok (husband) from an interlocutory judgment entered in the Family Court granting a divorce to both parties on the ground of irreconcilable differences, providing for custody and support of the minor child of the parties, and distributing the assets between the parties in accordance with the provisions of G.L.1956 (1981 Reenactment) § 15-5-16.1, P.L.1982, ch. 403, § 1. We affirm the judgment with one modification based upon a waiver made before this court by the wife. The facts of the case as set forth in a carefully prepared rescript by the trial justice are as follows.
Gladys L. Cok, Ph.D., and Leo Cok, M.D., were married on March 28, 1958. At the time of the entry of judgment the husband was fifty-three years of age, the wife was fifty-one years of age, and the parties had been married for twenty-three years. The one child born of the marriage was Igor, who was eleven years of age at the time of entry of the order pending final judgment. The husband was employed by the State of Rhode Island and at that time received an annual gross salary of $55,000 per year. The wife was employed at St. Joseph Hospital at an annual gross salary of $23,600. The parties jointly owned four parcels of real estate improved by dwelling houses and four parcels of real estate consisting of two lots of vacant land in Coventry, one lot in Florida, and one lot in New Hampshire. Three other parcels of real estate were held in the name of the wife and her mother, Antonia D. Lara, as joint tenants. The trial justice found as a fact that the three parcels of real estate owned as joint tenants by the wife and her mother "were purchased substantially with the monies of Mrs. Lara."
The trial justice further found that both parties were equally at fault in the breakdown of this marriage and in creating a tumultuous and stormy atmosphere in which the minor child had been reared. As a result of the inability of the parties to engage in any cooperative effort for the preservation of their real estate or for decision making in regard to the care of the child, the trial justice was forced to appoint a guardian ad litem and a conservator of the real estate. Both husband and wife objected to the appointment of these officers by the court.
At the conclusion of a series of approximately nineteen hearings before the trial justice beginning in January 1980 and extending through March 25, 1982, the trial justice entered the following orders based upon elaborate findings of fact and the hearing of a postjudgment motion filed under Rule 59 of the Rules of Procedure for Domestic Relations.
1. The wife's original petition for absolute divorce as amended from a bed and board petition on June 3, 1981, and husband's counterclaim were granted on the ground of irreconcilable differences.
2. The husband and wife were awarded joint custody of the minor child of the parties with physical possession to be with the wife except for school summer vacations during which the husband was allowed to take the child on an annual visit to Trieste in Europe. Otherwise, the parties were to divide the child's holiday periods on an alternating basis.
3. The husband was ordered to maintain and keep in full force and effect medical coverage on behalf of the minor child and to pay any medical or dental expenses not covered by Blue Cross. The husband was further ordered to pay $175 per week for the support of the minor child until such time as he should become emancipated or reach the age of eighteen years. The weekly support for the child was modified by a post-interlocutory judgment order so as to reduce said sum to $50 per week for that portion of the summer period when the child is in the physical custody of the father. The husband was ordered to maintain life insurance policies for the benefit of the minor child.
4. The three pieces of property listed in the name of the wife and her mother were assigned to the wife to the extent that the husband may have had any interest therein. The marital domicile was assigned to the wife in order that the custodial parent would have the marital domicile free and clear of encumbrances. The husband was ordered either to pay or to assume (by continuing monthly payments) the outstanding mortgage on the marital domicile, which at the time of the judgment had a balance of approximately $34,000. The husband was ordered to pay executions and other liens or second mortgages which were still outstanding on the marital domicile.
5. The balance of the real estate owned by the husband and wife was ordered to be sold and the proceeds divided equally between the parties after the payment of all outstanding mortgages, liens, and encumbrances. However, the share due the husband was ordered first to be applied to pay the obligations in respect to the marital domicile (unless he exercised the option to assume and pay the mortgage monthly.)
6. The husband was also ordered to pay from his share of the proceeds of the sale of said properties the amount of $15,000 as counsel fee to the attorney for the wife, Albert J. Mainelli, Esquire.
7. The court found that neither party was entitled to alimony and that neither party was in need of alimony. Consequently, no alimony was awarded.
8. As a result of the contumacious and completely uncooperative attitude of both parties, the court was required to appoint a guardian ad litem and conservator of assets. The court ordered that the reasonable fees of such appointees were to be paid from the proceeds of the sale of the real estate of the parties but that the husband was to be given credit for sums of money previously paid toward his share of these obligations.
9. By order dated April 6, 1982, the court fixed the fees of the guardian ad litem at $4,710 and the conservator in the amount of $3,183.41. Accumulated arrearages in back taxes on the marital domicile were ordered to be paid by the wife, and the attorneys for the parties, Joseph R. DeCiantis, Esquire, and Albert J. Mainelli, Esquire were appointed co-commissioners to implement the sale of the parcels of real estate previously ordered to be sold. Thereafter, both attorneys for the parties withdrew and the orders appointing them as co-commissioners were vacated.
The husband and wife appeal from the interlocutory judgment as revised. They filed briefs pro se ipso and argued orally before the court. Generally, the husband objected to the distribution of property, to the requirement that he pay $15,000 in counsel fees on his wife's behalf, to the amount of support required for the minor child, and to the failure of the court adequately to punish the contumacious conduct of the wife while finding the husband in contempt from time to time.
The wife vehemently objects to the failure of the court to provide her with alimony, to the appointment of the guardian ad litem and the conservator (both of whom she considered to be unnecessary), and to the attorney's fee awarded to Albert J. Mainelli, Esquire, to be paid by her husband. The wife also claims that she did not authorize the amendment on June 3, 1981, by her counsel of her complaint for separate maintenance to a complete and absolute divorce on the ground of irreconcilable differences.
No significant purpose would be served by a detailed analysis of the somewhat conclusory arguments presented by both parties. However, we shall attempt to deal with the issues raised in the order of their importance.
An examination of the voluminous transcripts in the case discloses beyond doubt that the finding of the trial justice that this marriage was "dead and a marriage in name only" and that the chances of the parties "ever being reconciled * * * are nil" was supported by clear and convincing evidence and is beyond rational dispute. Further, there is no indication on the record that the wife ever brought to the attention of the trial justice the fact that the amendment of her complaint was without authorization. It is a basic rule of appellate practice in this court that matters not brought to the attention of the trial justice may not be raised for the first time in this court on appeal. Fiske v. MacGregor, Division of Brunswick, R.I. 464 A.2d 719, 726 (1983); Veach v. Veach, R.I., 463 A.2d 508, 509 (1983); Mailloux v. Mailloux, R.I., 463 A.2d 192, 193 (1983). Consequently, this contention is utterly without merit.
In respect to the need of the wife for alimony and the propriety of the court's decision that she was not entitled to such alimony, we believe that the trial justice was entirely correct in his analysis and conclusion. The wife is...
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