Gordon v. Gordon

• Decision Date: 27 December 1962
• Docket Number: No. 1508,1508
• Parties: Philip GORDON v. Judith Libby GORDON. M. P.
• Court: Rhode Island Supreme Court

Page 732

186 A.2d 732

95 R.I. 299

Philip GORDON v. Judith Libby GORDON.

M. P. No. 1508.

Supreme Court of Rhode Island.

Dec. 27, 1962.

Motion for Reargument Denied Jan. 10, 1963.

Higgins, Cavanagh & Cooney, John P. Cooney, J., Guido R. Salvadore, Providence, for petitioner.

Pat Nero, Providence, for respondent.

CONDON, Chief Justice.

This is a petition for certiorari to review the action of the family court in modifying an interlocutory decree which it had previously entered with the consent to the parties to a pending divorce proceeding. We issued the writ and pursuant thereto the pertinent record has been certified to this court.

The interlocutory decree entered on May 3, 1962 ordered the husband, the petitioner here, to pay his wife $50 a week for her support and $150 as a counsel fee for the prosecution of her pending petition for divorce, and the husband has complied therewith. Nevertheless on July 23, 1962 the wife filed a petition to modify it 'with respect to support and temporary use of household furniture, etc.' After a hearing thereon before a justice of the family court, hereinafter referred to as the trial justice, the decree presently under review was entered on August 16, 1962. It increased the wife's allowance to $115 a week, ordered the husband to pay a hotel bill of $524.80 and certain other debts which the wife had incurred, and also to pay an additional counsel fee of $400.

The husband alleges in his petition that the trial justice acted without any legal evidence tending to prove a change in the wife's circumstances since May 3, 1962; that he exceeded his jurisdiction in making the decree operate retroactively; and that his action was otherwise arbitrary, illegal and without justification. He further alleges that he is without any adequate remedy at law to correct such action except by recourse to this court for the issuance of its writ of certiorari.

The respondent wife moved to dismiss the petition on the ground that there was an adequate remedy by bill of exceptions. This motion was heard on motion day October 1, 1962 and denied from the bench. Notwithstanding such denial she has again urged the same contention in her brief, apparently n the assumption that the bench decision was without prejudice to her right to renew the motion at the hearing on the merits. This is a misconception on her part as the record clearly shows. However, since she has cited Tillinghast v. Maggs, 76 R.I. 401, 71 A.2d 693, and O'Connell v. New York, N. H. & H. R. R., R.I., 169 A.2d 609, in support of her contention we have thought it well to consider it further here.

In the first place neither cited case is in point in the present situation. Here the decree under review is an interlocutory decree. Ordinarily no appeal lies from such a decree nor is it reviewable by a bill of exceptions. In a situation like the instant one we have heretofore exercised our discretion and issued the writ to bring up for review the record of the tribunal below where we thought it might be warranted in the interest of justice. See Adamo v. Adamo, 59 R.I. 6, 193 A. 737, 111 A.L.R. 1094; Parenti v. Parenti, 71 R.I. 18, 41 A.2d 313. In any event certiorari is manifestly appropriate in the case at bar since the husband alleges in his petition that the family court exceeded its jurisdiction. We have formerly held in reaffirmation of a long-established view that the primary office of the writ of certiorari is to review the action of a lower court or tribunal allegedly taken without or in excess of jurisdiction. White v. White, 70 R.I. 48, 36 A.2d 661, 151 A.L.R. 1374.

We now turn to the merits of the petition. The petitioner contends that the trial justice's decision increasing the wife's allowance and awarding her an additional counsel fee is without legal evidence that to support it. He further contends that the trial justice exceeded his jurisdiction in ordering the payment of obligations incurred by the wife prior to the bringing of ther petition for modification of the original decree. In other words he argues that the family court in considering such a petition is without power to enter a decree having a retroactive effect.

We think there is merit in this later contention. It appears that sometime before the entry of the decree awarding her an allowance of $50 a week for her support the wife had received treatment from several doctors whose bills for services she presented in evidence. However, none of the doctors testified with reference to such treatment nor is there any legal evidence concerning the wife's health and the necessity of medical treatment therefor. Only her own unsupported statements in regard thereto appear in the record. The orginal decree makes no reference to such treatment or the need therefor and the wife's petition for modification of that decree does not allege any change of condition respecting her health as a ground for modification. Neither does such petition allege the need for an additional counsel fee or any change in conditions since May 3, 1962 which makes the fee of $150 inadequate.

As we view the record it appears beyond dispute that the only matter presented by her petition for the trial justice's determination was whether, because of a change in conditions since May 3, 1962, ...