Fidler v. Fidler

• Decision Date: 07 January 1907
• Citation: 65 A. 608,28 R.I. 102
• Parties: FIDLER v. FIDLER.
• Court: Rhode Island Supreme Court

65 A. 608

28 R.I. 102

FIDLER

v. FIDLER.

Supreme Court of Rhode Island.

Jan. 7, 1907.

Appeal from Superior Court, Providence County.

Petition by Welcome Fidler against Jennie L. Fidler. From a decree for petitioner, respondent, appeals. Dismissed and remanded.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

John W. Sweeney, for petitioner. Clarence A. Aldrich, for respondent.

DUBOIS, J. This is an appeal from the decree of the superior court granting the petitioner a divorce from bed, board, and future cohabitation with the respondent, until they can be reconciled; giving her the custody of their two children; making an allowance to her; and denying the cross-petition of the respondent for an absolute divorce from the petitioner.

Obviously the first question that arises for determination is: Does an appeal lie from such a decree? "A right of review by appeal or writ of error does not exist in suits for divorce, unless, as is the case in most jurisdictions, the right is conferred by constitution or statute." 14 Cyc. 731, and cases cited. Upon this question the Constitution is silent. The respondent claims that such right is conferred by that portion of section 328 (page 95) of the court and practice act of 1905, which reads as follows: "Any party aggrieved by a final decree of the superior court in any cause in equity or proceeding following the course of equity may, within thirty days after the entry thereof, * * * appeal to the Supreme Court." The jurisdiction of the superior court in the premises is based upon the provisions of section 9 (page 3), of said act: "The superior court shall have exclusive original jurisdiction, except as otherwise provided by law, of suits and proceedings in equity, and of statutory proceedings following the course of equity, of petitions for divorce, separate maintenance, alimony and custody of children."

By the terms of section 304 (page 88) of the act it is provided that: "All petitions for the enforcement of mechanic" liens, petitions for divorce, and statutory proceedings so prescribed by statute, shall follow the course of equity so far as the same is applicable." By the words "shall follow the course of equity," etc., we understand the Legislature to intend that such proceedings shall follow the procedure in equity so far as the same is applicable. The statute nowhere states that a petition for divorce has been, is, or is to become, a proceeding always following the course of equity. In fact, in section 9 aforesaid, it is treated as something different and beyond a suit or proceeding in equity or a statutory proceeding following the course of equity, because it is mentioned after them and is properly classified with its cognate subjects—separate maintenance, alimony, and custody of children. Divorce proceedings in this state are purely statutory. Sammis v. Medbury, 14 R. I. 214; Leckney v. Leckney, 26 R. I. 441, 59 Atl. 311, and therefore a proper construction of the statute of divorce, and the sections of the court and practice act, affecting the same, hereinbefore referred to, will determine the question before us. The statute relating to divorce is Gen. Laws 1896, c. 195, as amended by Pub. Laws, p. 39, c. 971, passed April 2, 1902. Nowhere in the divorce statute or in the court and practice act is an appeal given from a final decree in divorce eo nomine. Appeals are granted in equity and in cases following the course of equity. Divorce cases are directed to follow the course of equity so far as the same is applicable. The very language admits that it may not always be applicable, and that the same is not always so appears in said chapter 195, as amended in section 18: "No divorce from the bond of marriage shall be granted solely upon default nor solely upon admissions by the pleadings, nor except upon trial before...