Hacking v. Hacking, 2076

• Decision Date: 29 June 1951
• Docket Number: No. 2076,2076
• Citation: 82 A.2d 168,78 R.I. 325
• Parties: HACKING v. HACKING. Eq.
• Court: Rhode Island Supreme Court

Page 168

82 A.2d 168

78 R.I. 325

HACKING v. HACKING.

Eq. No. 2076.

Supreme Court of Rhode Island.

June 29, 1951.

William M. Mackenzie, Pawtucket, for petitioner.

Charles A. Kiernan, Providence, for respondent.

CONDON, Justice.

This is a divorce proceeding in which a final decree was entered in the superior court on November 8, 1946. Thereafter on November 8, 1950 petitioner filed within such proceeding a petition to modify that decree and to adjudge respondent in contempt for neglect to comply with its terms providing a weekly allowance of $10 for the support of a minor child. When the petition was called for hearing in the superior court the trial justice ordered it stricken, apparently on the ground that it was improperly filed within the divorce proceeding whereas, in his opinion, it should have been filed as a separate and independent petition. From such order petitioner has appealed to this court.

The trial justice appears to have founded his ruling upon certain language in the opinion of this court in Tobin v. Tobin, 70 R.I. 362, 38 A.2d 756, and has construed it to mean that all matters which may be brought to the attention of the superior court after the entry of a final decree in a divorce proceeding should be by a separate and independent petition outside of such proceeding. This is a clear misconception of the opinion in that case. There we were considering a motion to vacate the final decree of divorce, not to modify it, which motion had been filed within the divorce proceeding.

In discussing the question whether that was a proper filing in the case we were careful to confine our language to the matter before us, namely, a motion or petition to vacate the final decree of divorce and nothing else. Thus at the very threshold of our discussion of the point at issue we limited such language as follows 70 R.I. at page 369, 38 A.2d at page 759: 'The instant motion is not the proper mode of invoking the superior court's jurisdiction to vacate a final decree of divorce. Such a proceeding is clearly independent of the divorce proceeding. It is not an incident of that proceeding but rather a birect attack upon the integrity of the final decree which concluded it.' (Italics supplied.) Moreover our references to and quotations from the precedents which we cited in support of our position immediately after making the above statement emphasized that we were speaking only of a proceeding to vacate a final decree of divorce.

There is nothing in that opinion which alters in any manner the longestablished practice in this state of filing within the divorce proceeding motions or petitions to modify a final decree with reference to such matters as continue within the control of the court. And we may say here that to seek a modification of such a decree is not the same as seeking to vacate the divorce itself. One is an incident of the original proceeding; the other is an attack upon the validity of the final decree therein. A petition for modification, of course, from its very nature cannot apply to the divorce itself but can apply only to such parts of the decree as are incidental to the divorce, such as custody of children, allowance for their support, alimony and other similar matters. It is because such matters are always subject to the control of the superior court, whether contained in an interlocutory or a final decree, that the most appropriate and practicable manner of seeking their modification is by a motion within the original divorce proceeding. Reynolds v. Reynolds, 53 R.I. 326, 116 A. 686.

However, respondent has called to our attention the following language in our opinion in Damm v. Damm, R.I., 72 A.2d 839, 842: 'While the motion does not seek to vacate the final decree in toto, it...