Culpepper v. Martins
| Decision Date | 03 June 1963 |
| Docket Number | No. 3083,3083 |
| Citation | 96 R.I. 328,191 A.2d 285 |
| Parties | William R. CULPEPPER v. Betty Jeanne MARTINS. Eq. |
| Court | Rhode Island Supreme Court |
Macioci & Morrison, Joseph J. Macioci, Newport, for petitioner.
Julius Schaffer, Moore, Virgadamo, Boyle & Lynch, Francis J. Boyle, Newport, for respondent.
This case involves the custody of the two minor children of the petitioner and the respondent, formerly husband and wife. The case is before us on the respondent's appeal from a decree of the family court granting the petitioner's petition for a writ of habeas corpus and denying and dismissing the respondent's motion for the custody of the children.
The petitioner, who is an officer in the naval forces of this county, was stationed in Puerto Rico where he lived with his wife and two children. Sometime in 1958 respondent left Puerto Rico with the children and returned to this country.
In February 1959 petitioner was granted a decree of divorce in Puerto Rico on the ground of abandoment. The respondent, who was represented by counsel in that proceeding, does not challenge the validity of the divorce decree. By agreement of the parties the custody of the children was awarded to respondent by the terms of the divorce decree. At the time the children were in this country.
On April 30, 1959 respondent married Julio D. Martins and on May 2, 1959 petitioner married Julia Abigail Martin. After some correspondence relating to the care and custody of the children, the parties met in New York city on May 5, 1959 where respondent voluntarily turned over the physical custody of the children to petitioner, with the understanding that they would remain with him for nine months of the year and with respondent during the three summer months.
In August 1960 respondent went to Puerto Rico to visit the children, where she remained over a week. While there respondent and her counsel and petitioner and his counsel signed a stipulation modifying the Puerto Rican decree by giving the legal custody of the children to petitioner, subject to respondent's right to have them with her for six weeks during the summer and to visit them not more than twice during the rest of the year in the presence of petitioner, except in case of any emergency. The stipulation was signed in August 1960, but it is dated October 3, 1960, thus indicating that it was entered in the Puerto Rican court on the latter date. It was incorporated into and made a part of the original divorce decree.
The children remained in Puerto Rico with their father and his present wife from May 1959 until October 1, 1960, when they moved to Norfolk, Virginia, where petitioner was assigned to duty. The children spent a six-week visit with their mother in Newport during the summer of 1961.
In July 1962 respondent wrote to petitioner to arrange for the children's summer visit. In reply petitioner indicated that the provision for the six-week visit with respondent was not for the best interest of the children and he asked respondent to consider letting his present wife adopt them, stating that this was the only permanent solution and that he had reached the point where he had no choice in what he must do.
As a result of this correspondence respondent engaged counsel in Norfolk and brought a bill of complaint in the court of law and chancery in that city praying in substance that petitioner be ordered to comply with the Puerto Rican stipulation. There was no hearing on that bill, but after consideration in chambers an order was entered giving respondent temporary custody of the children from July 16, 1962 to August 27, 1962 and ordering her to return the children to petitioner upon the expiration of that period. The instant action arose following respondent's refusal to return the children to petitioner at the end of such time.
Under her reasons of appeal respondent contends in substance that the decree of the family court is against the law and the evidence and the weight thereof. No ultimate findings of fact are incorporated in the decree. It merely grants petitioner's petition, denies respondent's motion, and 'reaffirms' the Puerto Rican stipulation. In the circumstance we are unable to determine from the decree whether it is warranted on the facts established by the evidence.
Under G.L.1956, § 14-1-52, as amended, of the family court act an appeal of this nature must follow the appellate procedure for causes in equity. On such appeals, we review the decree appealed from, not the decision of the trial justice. In the interest of orderly procedure the ultimate findings of fact on which the decree is based should be incorporated therein. See Lannon v. Lannon, 86 R.I. 451, 453, 136 A.2d 608, 137 A.2d 529. See also McKittrick v. Bates, 47 R.I. 240, 241, 132 A. 610. In the absence of such findings we must examine the decision of the family court to determine whether the findings on which it is based are supported by the evidence and whether the decree is warranted by the facts established and the applicable law.
The family court found in substance that at the...
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McCullough v. Hudspeth
...1136 (1947). Accord, Ford v. Ford, 371 U.S. 187, 192, 83 S.Ct. 273, 276, 9 L.Ed.2d 240, 244 (1962). Compare, Culpepper v. Martins, 96 R.I. 328, 333, 191 A.2d 285, 288 (1963). In this case our reading of Pennsylvania law convinces us that there, as here, 2 child custody orders are temporary ......
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