Hartt v. Hartt, No. 77-73-A

• Court: United States State Supreme Court of Rhode Island
• Writing for the Court: WEISBERGER
• Citation: 397 A.2d 518,121 R.I. 220
• Parties: Nina HARTT v. Kenneth HARTT. ppeal.
• Decision Date: 07 February 1979
• Docket Number: No. 77-73-A

Page 518

397 A.2d 518 121 R.I. 220 Nina HARTT
v.
Kenneth HARTT. No. 77-73-Appeal. Supreme Court of Rhode Island. Feb. 7, 1979.

Page 519

[121 R.I. 231] Kirshenbaum & Kirshenbaum, Alfred Factor, Providence, for petitioner.

McKinnon & Fortunato, Stephen J. Fortunato, Jr., Amy R. Tabor, Pawtucket, for respondent.

OPINION

[121 R.I. 222] WEISBERGER, Justice.

This is an appeal by a respondent husband from a Family Court decree holding him in contempt for failure to pay $1,200 in counsel fees. The fees had been ordered in connection with two decrees holding the husband in contempt for failure to make support payments to his former wife under the Uniform Reciprocal Enforcement of Support Act (URESA) G.L.1956 (1969 Reenactment) Chapter 15-11.

The facts, although complex, are undisputed. The named parties are Kenneth and Nina Hartt, a husband and wife who were divorced in Missouri in 1965 by a decree under which Kenneth was ordered to pay child support for their four children. After the divorce Nina moved to New York and Kenneth moved to Rhode Island. In 1968 Nina filed a petition under the New York Uniform Support of Dependents Law seeking increased support payments. As a result of that petition a decree was entered in the Rhode Island Family Court on December 11, 1968, under URESA ordering Kenneth to pay the increased support payments. This original decree was thereafter modified a number of times by successive decrees increasing the amount of payments due. The modifications are reflected in the decrees entered by the Family Court on August 18, 1969; January 20, 1971; March 1, 1973; and April 20, 1974.

By the decree of April 20, 1974, ¹ Kenneth was found to be in arrears in the sum of

Page 520

$1,505.71 under the terms of the January 20, 1971 and the March 1, 1973 decrees. He was ordered to pay that sum forthwith, as well as $750 in counsel fees for the bringing of the action, and $46.95 in costs. The monthly support payments were also increased. The record does not indicate that an appeal was taken from this order. ²

[121 R.I. 223] By an order of a master dated September 20, 1974, Kenneth was adjudged in contempt on three grounds. ³ He had failed to pay the $1,505.71 arrearage, the $750 counsel fees, and the increased monthly payments all ordered under the April 1974 decree. In order to permit Kenneth to purge himself of contempt, the master ordered him to pay the arrearage to Nina, and the $750 counsel fees to Nina's attorney. The master also ordered that Kenneth pay an additional $750 in counsel fees for the bringing of the second petition, thereby making a total of $1,500 in counsel fees and $1,505.71 in arrearages to be paid within 30 days. The master assigned the case to the reciprocal calendar to June 29, 1976 for a determination of whether Kenneth had complied with the order. As a result of continuances, however, the case was not heard until October 28, 1976. On July 21, 1976, Kenneth filed a motion to vacate all orders of the Family Court awarding attorney's fees. Upon denial of the motion by a master, Kenneth requested a review by a Family Court justice pursuant to § 8-10-3.1(g), as amended by P.L.1977, ch. 68, § 1. The Family Court affirmed the master's order and denied and dismissed the appeal in a decree dated October 5, 1976. ⁴ No appeal was taken to this court from that decree, although one was provided for in §§ 15-11-31 and 8-10-3.1(g), as amended by P.L.1977, ch. 68, § 1.

[121 R.I. 224] On October 28, 1976, ⁵ Kenneth was adjudged in contempt for failure to pay $1,200 of the $1,500 counsel fees ordered as purging conditions under the September 1974 decree. The parties stipulated in the October decree that Kenneth had paid $300 to Nina's attorney. The record does not indicate whether the arrearage of $1,505.71 was paid in compliance with the order of September 20, 1974. No issue with respect to this sum is raised on this appeal. Sentencing was set down for November 8, 1976, but was apparently stayed pending a review of the master's order by a Family Court justice, although there is no order in the record to this effect. See § 15-11-31.

On November 29, 1976, a decree was entered by a Family Court justice denying Kenneth's appeal and affirming the master's judgment of contempt. The justice found that the fees were ordered under the April 1974 and September 1974 decrees as part of the conditions to permit Kenneth to purge himself of contempt. The matter is now before us on appeal from the judgment of contempt pursuant to § 15-11-31.

Kenneth contends in substance that the powers of the Family Court are purely statutory, and there being no provisions under URESA for the award of counsel fees in this type of proceeding, any order awarding such fees is in excess of the court's jurisdiction. We are of the opinion that the order is not in excess of the court's jurisdiction and that this argument presents an assertion of error rather than a lack of jurisdiction on the part of the Family Court to enter such an order.

Page 521

Generally, on review of a judgment of civil contempt for disobeying an order of a court with jurisdiction of the parties and of the subject matter, a party will not be permitted to urge in defense of his alleged misconduct that the court erred [121 R.I. 225] in entering the order. ⁶ Brown v. Brown, 114 R.I. 117, 329 A.2d 200 (1974); Dupras v. Dupras, 103 R.I. 239, 236 A.2d 260 (1967); Ciallella v. Ciallella, 81 R.I. 320, 103 A.2d 77 (1954); McAuslan v. McAuslan, 34 R.I. 462, 83 A. 837 (1912); Starkweather v. Williams, 31 R.I. 134, 76 A. 662 (1910); See also Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967); United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947); Menard v. Woonsocket Teachers' Guild-AFT 951, 117 R.I. 121, 363 A.2d 1349 (1976). This is really another statement of the rule that a valid final judgment, even though erroneous, is not subject to collateral attack. 1B Moore, Federal Practice P 0.405(4.-1) at 637; 9 Id. P 110.13(4), 168 n.31 (2d ed. 1948); See Metts v. B.B. Realty Co., 108 R.I. 55, 271 A.2d 811 (1970).

Subject to certain exceptions not here applicable, ⁷ however, a party charged with contempt for violating a court order may defend a disregard of that order by showing it was void for lack of jurisdiction. Mayer v. Mayer, 36 Del.Ch. 457, 132 A.2d 617 (1957); 1B Moore, Supra, P 0.405(4.-1) at 635.

We conclude that at the time the decrees ordering attorney's fees were entered, the Family Court had jurisdiction both of the parties and of the subject matter. Although the Family Court is a tribunal whose jurisdiction is limited to those powers expressly conferred upon it by statute, Naughton v. Goodman, 117 R.I. 113, 363 A.2d 1345 (1976), in the instant case the Family Court's jurisdiction over the parties was acquired by proper service and its jurisdiction over the subject matter expressly conferred by [121 R.I. 226] § 15-11-15. Whether the court erred in the exercise of its power of contempt by awarding attorney's fees as a purging condition is a question we may not address on this appeal, which brings before us only the decree which was entered in the petition to adjudge the husband in contempt. Heroux v. Heroux, 59 R.I. 212, 194 A. 741 (1937).

Even though jurisdiction over the subject matter and the parties exists, a final order may nevertheless be susceptible of collateral attack when the court has exceeded its jurisdiction in rendering it. This basis of collateral attack has been recognized by a number of state and federal courts, and by the Restatement. E. g., Arenas v. United States, 95 F.Supp. 962, 970 n.23 (S.D.Cal.1951), Aff'd, 197 F.2d 418 (9th Cir. 1952); Rosenstiel v. Rosenstiel, 278 F.Supp. 794 (S.D.N.Y.1967); In re...