Concannon v. Concannon

• Decision Date: 03 May 1976
• Docket Number: No. 74-290-M,74-290-M
• Citation: 116 R.I. 323,356 A.2d 487
• Parties: Florence T. CONCANNON v. Richard CONCANNON et al. P.
• Court: Rhode Island Supreme Court

Page 487

356 A.2d 487

116 R.I. 323

Florence T. CONCANNON v. Richard CONCANNON et al.

No. 74-290-M.P.

Supreme Court of Rhode Island.

May 3, 1976.

[116 R.I. 332] Kirshenbaum & Kirshenbaum, Alfred Factor, Providence, for petitioner.

Adolph N. Anderson, Jr., Providence, for Industrial National Bank of Rhode Island, Trustee.

Edwards & Angell, John Fenn Brill, John H. Blish, Providence, for Rhode Island Bankers Ass'n, amicus curiae.

OPINION

DORIS, Justice.

This is a petition for a writ of certiorari which seeks to review a decision of a Family Court justice denying a motion by the respondent to dismiss for lack of jurisdiction a petition by the petitioner seeking a determination of the amount to be paid for the support of the minor children, and ordering the trustee under the will of the deceased mother of the respondent to make support payments from funds of a trust set up under the will.

We ordered the writ issued and stayed all further proceedings in the Family Court pending our decision. Pursuant to the writ, the Family Court records were duly certified to this court for our examination.

It appears from the record that on March 27, 1972, Alice M. Concannon, mother of Richard Concannon, respondent, executed a will under the terms of which she left the residue of her estate in trust to Industrial National Bank of Rhode Island, third-party respondent in Family Court and petitioner before this court (hereinafter sometimes referred to as trustee). By the terms of the trust, the trustee was directed to pay the net income from the trust to testatrix's son Richard Concannon. The trustee was also authorized in its sole and uncontrolled discretion to make payments out of the principal to or for the benefit of Richard and the children of Richard. Alice M. Concannon died April 14, 1972. The will was duly probated and a final account was allowed on March 22, 1973, in the Probate Court of the town of Johnston. Since that time Industrial National Bank of Rhode Island has acted as trustee under the terms of an express trust contained in the will of decedent Alice M. Concannon.

On December 7, 1972, a final decree was entered in Family Court granting Florence Concannon a divorce from Richard Concannon and awarding her custody of the minor children and other relief. The respondent, Richard Concannon, was ordered to make support payments for the benefit of the minor children.

On or about July 25, 1973, Florence T. Concannon requested the trustee to make payments out of the principal or income of the trust fund for support of the minor children. The trustee declined to make such payment out of the fund.

On September 25, 1973, Florence T. Concannon filed a petition in Family Court joining Richard Concannon and Industrial National Bank of Rhode Island, in its capacity as trustee under the will of Alice M. Concannon, as respondents. The petition sought an order determining what the trustee should pay for support of the minor children out of income and/or principal of the trust fund. The trustee filed a special appearance to contest jurisdiction of the Family Court. After oral argument and submission of memoranda of law by counsel, the Family Court justice made the following findings:

1. That the trustee was subject to the jurisdiction of the Family Court under the provisions of G.L.1956 (1969 Reenactment) § 8-10-3.

2. That it was the intention of the testatrix to provide support for the minor children of Richard from the principal of the trust fund.

3. That the trustee had abused its discretion by not making payments from the principal of the trust fund for the benefit of the minor children.

On these findings, the trial justice concluded that the Family Court had jurisdiction over the trustee and denied the trustee's motion to dismiss the petition for lack of jurisdiction, but to date, a decree implementing his decision has not been entered in Family Court.

The petitioner first argues that certiorari should not lie because the trustee has a remedy by the usual appellate process, and further that since no decree has been entered, granting of certiorari would be premature. She further argues that, in any event, the trustee seeks a review of an interlocutory order and that the granting of certiorari would result in bringing the matter before this court in piecemeal fashion contrary to the usual rule.

It is true, as set forth earlier, that no decree has been entered implementing the decision of the trial justice denying the trustee's motion to dismiss for lack of jurisdiction. However, in the circumstances, we will construe the decision of the trial justice as a decree as we did in Rogers v. Rogers, 98 R.I. 263, 201 A.2d 140 (1964).

Ordinarily certiorari does not lie where another adequate remedy is available whereby the applicant's rights can be reviewed and determined by this court, nor where the applicant seeks a review of an interlocutory order nor where to grant certiorari would result in bringing a matter before us in piecemeal fashion. This is the rule which has been followed for many years, except where it is shown that unusual hardship or exceptional circumstances would void the benefits of an otherwise adequate remedy at law. Barletta v. Kilvert, 111 R.I. 485, 304 A.2d 353 (1973); Shiller & Schwerin & Gemma, 106 R.I. 163, 256 A.2d 487 (1969); Rogers v. Rogers, supra.

Here, the decision of the trial justice asserts that the Family Court has jurisdiction over a trustee under the will of the mother of a party to a divorce proceeding in that court. The trial justice further asserts that the Family Court has jurisdiction to interpret the terms of the trust set up by the will. The trustee avers that the jurisdiction asserted by the trial justice is exclusively in the Superior Court. The jurisdictional question thus raised is of prime importance as it relates to a determination of the rights affecting members of a family unit and as it raises the issue of jurisdiction of the Family and Superior Courts.

In our opinion, the circumstances are of such an unusual and exceptional nature, in addition to being one of first impression, so as to warrant us to exercise our discretion to review by certiorari the decision of the justice of the Family Court.

The sole issue raised by the trustee for our determination is whether the Family Court has jurisdiction over a trustee under the will of a person, not a party but related to one of the parties in the original divorce proceeding and to interpret the provisions of the will of the decedent. The trustee concedes that it is subject to judicial review of its fiduciary actions and that the will under which it acts is subject to judicial interpretation and review. It argues, however, that such judicial interpretation and review is an equitable matter and as such is vested in the Superior Court under the provisions of § 8-2-13, ¹ and concludes that the Family Court lacks jurisdiction to join the trustee as a third party respondent and to interpret the language of an express written trust. In the instant case, we are concerned with an express trust ² set up under a will. The trustee contends that it acts in its fiduciary capacity under the terms of such express trust.

The Superior Court has exclusive original jurisdiction, except as otherwise provided by law, of suits and proceedings in equity and it is within the power of that court to advise and direct trustees as to the management of trust estates and to enter decrees for that purpose. Gardner v. Sisson, 49 R.I. 504, 144 A. 669 (1929).

The Family Court is a statutory court of special jurisdiction. Its jurisdiction is expressly defined in § 8-10-3. The court is vested with exclusive and original jurisdiction over specific matters expressly set forth in § 8-10-3. State v. Zittel, 94 R.I. 325, 180 A.2d 455 (1962).

When jurisdiction is transferred by the Legislature from another tribunal to Family Court, such transfer is accomplished by use of express language explicitly taking power from another tribunal and conferring such power on the Family Court. In like manner in transferring the exclusive original jurisdiction of the juvenile court over certain matters to the Family Court, the Legislature used express language. It did not do so by implication. State v. Zittel, supra.

Section 8-10-3 ³ contains no language expressly conferring on the Family Court either original or concurrent jurisdiction over express trusts. In the absence of a clear legislative intent to the contrary, such...