Damm v. Damm

• Court: Rhode Island Supreme Court
• Writing for the Court: FLYNN
• Citation: Damm v. Damm, 77 R.I. 24, 72 A.2d 839 (R.I. 1950)
• Decision Date: 21 April 1950
• Docket Number: No. 9086,9086
• Parties: DAMM v. DAMM. Ex.

Page 839

72 A.2d 839

77 R.I. 24

DAMM v. DAMM.

Ex. No. 9086.

Supreme Court of Rhode Island.

April 21, 1950.

Matthew J. Faerber, Roland R. Parent, Newport, for petitioner.

John C. Burke, Newport, for respondent.

FLYNN, Chief Justice.

This proceeding was commenced by a motion to modify a final decree of divorce in regard to custody of the two minor children of the parties and the allowances for their maintenance and support. After a hearing in the superior court at which the respondent wife did not appear, the motion was granted and a decree accordingly was entered. From that decree the respondent, who was also the successful cross petitioner in the divorce action, has duly prosecuted her appeal.

A brief statement of the travel of the case will assist in understanding the issue. The petitioner Carl Andreas Damm, hereinafter referred to as the husband, brought an action for absolute divorce against the respondent Therese B. Damm, hereinafter referred to as the wife. The latter also brought a cross petition against her husband on the ground of extreme cruelty. After a hearing on the merits in the superior court a decision was rendered on March 4, 1948 denying the husband's petition, granting the wife's cross petition, and awarding to her custody of the minor children, subject to a specified right of the husband as to visitation, and allowances for their support.

On September 11, 1948, more than six months having elapsed from the date of the decision, a final decree was entered in the superior court in accordance therewith. That decree also contained provisions whereby alimony was permanently waived by the wife; certain household furniture and effects were awarded to the husband; and allowances of $35 per week for the support of the minor children were ordered 'to be paid at the office of the Honorable John C. Burke, Solicitor of record for the respondent.'

Subsequently the husband contracted another marriage but the wife remained single. With some possible exceptions, payments by the husband of the allowances under the final decree were made until June 7, 1949 by checks payable to John C. Burke, attorney for Therese B. Damm. These were so endorsed by him and paid over to the wife, who meanwhile had moved with her children from Newport, Rhode Island, to her parents' home in New York City. The husband apparently found it expensive or inconvenient to visit his children in New York under the conditions as fixed by the final decree, although these conditions were known to him when, without objection, the decree was entered.

For those reasons and perhaps others he commenced the instant proceeding by a motion 'that the provisions with regards to custody and support for the minor children in the final decree entered on the 11th day of September, A. D. 1948 be modified.' This motion was captioned, filed and docketed as if it were an ordinary motion within a pending divorce action before final decree, whereas a final decree therein had already been entered. A copy of the motion was served upon 'John C. Burke, Esq. Attorney for Therese B. Damm' together with a notice that it would be called for hearing in the superior court on June 6, 1949.

When the motion was reached for hearing Mr. Burke, who had acted as the wife's attorney in the divorce action, appeared specially to inform the court that he was not authorized to receive or accept service of such motion as attorney for the wife; that he did not accept such service; and that he was in court in his own right to protect himself and to object personally to any proceeding based thereon, since the service was null and void and gave the court no jurisdiction. The court, after hearing arguments and over Mr. Burke's objection, stated: 'I will hold the matter is properly before the Court.'

Thereupon Mr. Burke explained that he could not ask for a continuance as attorney for the wife because he was not acting as such. In the discussion, however, he suggested in substance that the court might wish to consider whether it was advisable to proceed in an important matter involving the welfare of the children without their mother being notified and having an opportunity to be present. Thereupon the court with the consent of the husband's attorney continued the motion for hearing for one week, at which time the wife was not present personally or by attorney. Mr. Burke restated that his appearance was special and he objected again to any proceeding based on the alleged service of the motion. His objection was overruled, however, and the case was heard solely on testimony by the husband and his witnesses. Mr. Burke refrained from any cross-examination and did not otherwise participate in the proceeding.

At the conclusion thereof the court denied the husband's motion for a complete change in the custody of the minor children from the wife to himself, but granted certain amendments to the provisions of the decree in regard to their custody. These amendments provided in substance that the husband had the right to custody of the minor children from July 1 to September 1 in the year 1949 and each succeeding year; that he had the right to see, visit with, take and have the company and society of said minor children at any and all reasonable times when they were in the custody of their mother; and also that the allowances for the support of said children be reduced from $35 weekly as fixed in the final decree to $25 per week. Accordingly a 'supplementa...