Condosta v. Condosta, 68-77

• Decision Date: 11 September 1978
• Docket Number: No. 68-77,68-77
• Parties: Rosalie CONDOSTA v. Guido CONDOSTA
• Court: Vermont Supreme Court

Page 345

395 A.2d 345

136 Vt. 360

Rosalie CONDOSTA v. Guido CONDOSTA

No. 68-77.

Supreme Court of Vermont.

Sept. 11, 1978.

Motion to Disqualify and Motion for Reargument Denied Oct. 2, 1978.

Motion for Stay of Mandate Denied Oct. 31, 1978.

Robert Grussing, III, Brattleboro, for plaintiff.

Charles D. Carrington, Arlington, for defendant.

Guido Condosta, pro se.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

LARROW, Justice.

The defendant below appeals from a divorce judgment awarded his wife. The action was brought originally on the ground of intolerable severity, and an allegation, denominated "anticipatory," of six months separation without reasonable probability of resumption of the marital relationship. Defendant for the most part represented himself below, with the not unusual result that the docket entries alone, in the trial court, are some eight pages in length. A review of the record demonstrates that he received full and considerate hearing on all the points he sought to raise. Following trial on the merits, the trial court filed extensive findings of fact, none of which are questioned seriously here. Although the findings contain ample basis for awarding the judgment on the ground of intolerable severity, the order granted the judgment on the ground of six months separation. No child custody was involved, the four children of the parties having attained majority. No alimony was awarded. The home premises of the parties, with furnishings, was awarded to the plaintiff, and defendant was permitted to retain some $16,000-$17,000 realized from the proceeds of a lawsuit against his public utility. Defendant was ordered to pay a total of $600 attorney fees.

The claims advanced by the defendant on appeal are not easily categorized. We will consider them in what seems to us logical order.

On November 1, 1976, defendant filed with the clerk of the Windham Superior Court a purported notice of appeal from orders relating, Inter alia, to withdrawal of counsel, disqualification of judges, and a motion to amend a prior order. The accompanying fee was returned by the clerk, on instructions of the presiding judge, "because your right to appeal before the case has been completed has been denied." We agree with defendant that this action was inappropriate, and that determination of the validity of an appeal is a matter for determination by this Court, upon proper motion. But no prejudice is made to appear. All the rulings brought into question were interlocutory in nature, and no permission to appeal was ever asked or granted under V.R.A.P. 5(b)(1). Absent such a request, and with, of course, no motion in this Court after a trial court denial, the attempted appeal would have been dismissed anyway on motion here. Adams v. Wright, 133 Vt. 481, 346 A.2d 217 (1975).

A second claim of error below, involved also in the attempted appeal discussed Supra, is the refusal of members of the trial court to disqualify themselves upon defendant's motion claiming prejudice against him. The record is virtually barren of factual support for this motion. It is based upon a claimed, and denied, allegation that the plaintiff, with her attorney, was in chambers with the court just before the temporary hearing, in the absence of the defendant who was waiting in the courtroom. Beyond a general allegation that this must involve factual knowledge obtained outside the record, condemned in Seibert v. Seibert, 124 Vt. 187, 191-92, 200 A.2d 258, 261 (1964), there is no record showing of what this evidence was or what prejudice may have resulted from its acquisition. Bias or prejudice is not made to appear solely by allegation, and disqualification is not here required. State v. Beshaw, 134 Vt. 347, 351, 359 A.2d 654, 656-57 (1976). Moreover, as a result of the tortuous history of this case in the trial court, the presiding judge against whom the motion was directed did not participate in the hearing on the merits. Neither did one of the assistant judges, so that the motion eventually related only to one assistant judge. Nothing in the record is pointed out to us as indicating prejudice, and our search of the record, not required under our rules, reveals nothing of a prejudicial nature. This claim of error is not sustained.

Defendant seems to place his greatest stress in his argument here upon the plaintiff's "anticipatory" allegation of six months separation in her original complaint, coupled with an allegation of intolerable severity. As nearly as we can analyze his argument, he contends (1) that the court should have granted his motion to dismiss for failure to state a cause of action; (2) that there was error in granting the judgment of divorce without amendment of the "anticipatory" allegation, thus depriving him of notice of the basis for relief asserted; and (3) that by granting his wife temporary use and occupancy of the home, the court in effect created the cause of action for which it granted the divorce.

A cause of action was stated by the original complaint, without reference to the anticipatory allegation of separation; intolerable severity was alleged. Defendant argues that this additional allegation was also defective, because it did not set forth the specific acts claimed to constitute intolerable severity. V.R.C.P. 80(b) might seem to support this contention, requiring as it does that a divorce complaint "state particularly the factual basis of the claim." But long practice, under a statute with similar wording, has been the opposite, based upon the peculiar nature of the divorce action. Sanders v. Sanders, 25 Vt. 713 (1853); Hemenway v. Hemenway, 65 Vt. 623, 27 A. 609 (1893); Raymond v. Raymond,120 Vt. 87, 91, 132 A.2d 427, 429-30 (1957). The underlying reasoning seems to be that the rights of the parties are protected adequately by obtaining particulars, if desired, by motion, and the absence of legislation mandating any other type of procedure. More particularity may now be obtained, if desired, under V.R.C.P. 12(e), a motion procedure to which defendant, despite his many other motions, did not resort. He did move to depose the plaintiff, and the motion was granted. No error appears in denying defendant's motion to dismiss. Further, while it might have been preferable procedure for the trial court to require an amendment of the anticipatory allegation of continued separation, under V.R.C.P. 15(b), we can see no prejudice to defendant, from a failure to do so. The record amply demonstrates that there was no lack of notice to defendant that this was an issue; it was litigated and argued at great length. The issue having been fully tried, failure to amend does not affect the result. V.C.R.P. 15(b). We are not, moreover, in the light of long continued practice in our trial courts, inclined to overrule Hemenway v. Hemenway, supra, clearly applicable by analogy here. Under a former statute requiring a stated period of desertion, this Court held in Hemenway that anticipatory pleading of desertion was not subject to dismissal, even though unamended. Except for deletion of the word "anticipatory," the allegation would have remained unchanged. Long before final hearing, it had become evident that this word was mere surplusage, and its...