Di Nofrio v. Di Nofrio

• Decision Date: 30 August 1956
• Docket Number: No. 2399,2399
• Citation: 125 A.2d 194,85 R.I. 21
• Parties: Felicia DI NOFRIO v. John DI NOFRIO. Eq.
• Court: Rhode Island Supreme Court

Page 194

125 A.2d 194

85 R.I. 21

Felicia DI NOFRIO v. John DI NOFRIO.

Eq. No. 2399.

Supreme Court of Rhode Island.

Aug. 30, 1956.

Charles A. Kelley, Paul E. Kelley, Providence, for petitioner.

Paul & Motta, Alfred E. Motta, Providence, for respondent.

CONDON, Justice.

This is a wife's petition for divorce on the grounds of extreme cruelty and neglect to provide. The husband filed an answer thereto in the nature of a cross petition for divorce on the grounds of extreme cruelty, gross misbehavior repugnant to and in violation of the marriage covenant, and willful desertion. After a hearing on the merits in the superior court, the trial justice granted the petition on the ground of extreme cruelty, awarded the petitioner alimony of $25 per week, and denied and dismissed the cross petition. The respondent excepted to such decision and has brought the cause here by his bill of exceptions containing that exception and several others taken to rulings during the trial. He thereupon refused to pay alimony.

After the decision and after respondent had filed his notice of intention to prosecute a bill of exceptions thereto, petitioner filed a motion in the superior court praying that respondent be ordered to pay her a suitable counsel fee to enable her to defend respondent's bill of exceptions in this court. After a hearing thereon the trial justice entered a decree awarding her a counsel fee of $110. From that decree respondent filed an appeal to this court and also prosecuted a bill of exceptions.

Upon the filing of such appeal the respondent also declined to comply with that decree. The petitioner thereupon moved to adjudge him in contempt for failure to pay her alimony and also counsel fees. The trial justice granted the motion as to the counsel fees, adjudged respondent in contempt and allowed him until April 15, 1955 to purge himself thereof. A decree to that effect was duly entered and from such decree respondent has appealed to this court. He has also prosecuted a bill of exceptions thereto.

We shall dispose of the questions raised by those two motions before considering the exceptions to the trial justice's decision on the merits. In the first place the correct procedure for bringing to this court for review decrees entered on motions filed after a decision on the merits of a divorce petition is by appeal and not by a bill of exceptions. Harvey v. Harvey, 45 R.I. 383, 123 A. 82. We shall consider only the appeals from the decrees granting such motions. The bills of exceptions as to such motions are dismissed.

The respondent contends that the decree granting the motion for counsel fees to enable petitioner to defend on review in this court the decision on the merits is against the law and the evidence and the weight thereof. As to the law, he argues that General Laws 1938, chapter 416, § 14, is the sole authority for the superior court awarding counsel fees to a wife in a divorce case; that in Gartner v. Gartner, 79 R.I. 410, 89 A.2d 375, 376, this court has decided such section does not comprehend proceedings on appeal; and that in any event this section sets up two conditions that the moving party must meet before she may be granted an award. The first is that she must show the husband has a sufficient estate out of which such fees may be paid, and secondly, that she is without property of her own available for the purpose.

The respondent misconstrues the Gartner case. In that case we pointed out that the wife was 'neither prosecuting nor defending against a petition for divorce or separate maintenance.' And we cited Cornell v. Cornell, 53 R.I. 352, 166 A. 815, to show that if she were doing either of these an award of counsel fees would be proper. In the case at bar petitioner is still engaged in prosecuting her petition for divorce and defending against respondent's cross petition as a result of his prosecution of a bill of exceptions in this court. The trial justice, therefore, did not err in so considering her status under § 14.

The next question is whether or not she showed by sufficient credible evidence that respondent was able to pay the counsel fees sought and that she was without means to do so. Such conditions must be satisfied before the trial justice is warranted in making an award. However, the section vests the decision of these matters in the discretion of the trial justice and unless such discretion is abused this court will not disturb his decision. There is evidence here upon which the trial justice could have relied to exercise his discretion. Although such evidence is meager, it is not disputed and we cannot say that it is so utterly lacking in probative force that it amounted to an abuse of discretion for the trial justice to base an award of a counsel fee of $110 upon it. Hence we affirm the decree.

In view of that conclusion it seems unnecessary to consider respondent's appeal from the decree adjudging him in contempt for failure to pay the fee as ordered. However, it appears that the trial justice compelled him to purge himself by complying with the decree, notwithstanding his claim of appeal. He ruled that the appeal did not suspend the decree, because such decree was interlocutory and there was no appeal from it. This was error. The decree was not interlocutory. It was a final disposition of an independent matter which arose after the case on the merits had been concluded and was therefore subject to review by appeal. An appeal having been duly taken, the effect thereof was to suspend the operation of the decree pending final determination of the appeal in this court. And the same is true of the decree adjudging respondent in contempt. His appeal therefrom suspended that decree and he should not have been compelled to purge himself while such appeal was pending. Hence we must reverse the decree entered on that motion, but since we have already ruled that there was no error in the award of counsel fees on the motion therefor an order for repayment of such fees to respondent cannot be made.

This brings us to the consideration of respondent's exception to the decision on the merits of the petition and the cross petition and his exceptions to the rulings therein. We have examined the three exceptions to the admission or exclusion of certain testimony and we are of the opinion they are without merit and need not be discussed at length. In our opinion, regardless of what might have been the effect of the rulings...