Johnson v. Johnson

• Decision Date: 18 January 1973
• Docket Number: No. 1717-M,1717-M
• Citation: 298 A.2d 795,111 R.I. 46
• Parties: Leona B. JOHNSON v. William R. JOHNSON et al. p.
• Court: Rhode Island Supreme Court

Page 795

298 A.2d 795

111 R.I. 46

Leona B. JOHNSON v. William R. JOHNSON et al.

No. 1717-M.p.

Supreme Court of Rhode Island.

Jan. 18, 1973.

Edwards & Angell, Gerald W. Harrington, Providence, for respondent on certiorari.

Hetherington & Hetherington, Thomas G. Hetherington, Pawtucket, for David Weir, Trustee for the Johnson Land Co., petitioner on certiorari.

OPINION

JOSLIN, Justice.

This is a petition for certiorari to review a Family Court decree joining the Johnson Land Company, a corporation organized under the laws of this state, and David Weir as third party respondents in a divorce proceeding, and temporarily enjoining them from taking certain actions with respect to the marital domicile of the original parties to the divorce proceeding.

The pertinent facts may be briefly stated. In July of 1971 the wife, Leona B. Johnson, filed a petition for divorce from bed, board and future cohabitation with her husband, William, and accompanied it with a motion for temporary allowance and other relief pendente lite. She recites in her motion that the Johnson Land Company owns the real estate on which her marital domicile is located, and that David Weir is a stockholder of that company; she includes in her prayer for relief requests that they be made parties to the proceedings, and be restrained from interfering or attempting to interfere with her possession of the domicile and from selling or otherwise attempting to sell the same.

The third parties were ordered joined and were duly served with process. At the hearing on preliminary injunction which followed, it appeared that the husband's father had for many years owned a large estate in the town of Bristol known as Poppasquash Gardens and that situated thereon were three dwelling houses, one of which later became the marital domicile in question, and that such property had been conveyed to the Johnson Land Company during the father's lifetime. All of the company's issued and outstanding stock was then owned and continued to be owned by the elder Johnson until his death when it passed under his will to third party respondent Weir and another, now deceased, in trust the net income therefrom to be paid to the husband during his lifetime and upon his death the remainder to be divided in equal shares among the husband's surviving children. The will also permitted the principal to be invaded for the husband's required support, maintenance or welfare.

Soon after his father's death in 1956, the husband became president of the Johnson Land Company and he held that office until shortly after the commencement of these proceedings. It was in 1956, also, that the husband, together with his wife and children, moved into the marital domicile which they have since occupied under an oral lease whose duration and rental are unspecified.

At the conclusion of the hearing, the trial justice, without rendering either a bench or written decision, caused a decree to be entered in which he (1) found that the Family Court had jurisdiction to make the Johnson Land Company and David Weir parties to the divorce proceeding; (2) awarded the wife the right to occupy the marital domicile and enjoined the husband from interfering with that occupancy; and (3) restrained and enjoined third party respondents 'from disposing of or attempting to dispose of the matrimonial domicile' and '* * * from interfering or attempting to interfere with the right of the (P) etitioner (the wife) to continue to occupy said matrimonial domicile * * *.'

It is to so much of this decree as purports to restrain and enjoin them, that third party respondents direct their petition for certiorari. At the outset there is the procedural question of whether or not they selected the proper vehicle for bringing their case here. Although the wife's challenge to the appropriateness of that procedure was first advanced in her memorandum in opposition to third party respondents' motion for leave to file their petition, we did not allude the her challenge when we granted that motion. Johnson v. Johnson, 109 R.I. 953, 288 A.2d 268 (1972). We do so now.

The wife was, of course, on sound ground when she asserted in her memorandum that a petition for certiorari will not lie when another remedy is expressly provided for review of the alleged errors. This has long been the law. Cohen v. Superior Court, 39 R.I. 272, 275, 97 A. 794, 796 (1916). She then insisted that G.L.1956 (1969 Reenactment) § 14-1-52 made such a remedy available. That provision, in pertinent part, stipulates that a litigant may appeal to this court '(f)rom any final decree, judgment, order, decision, or verdict of the family court * * *' by following the procedures established by '* * * chapter 24 of title 9 and applicable procedural rules relating to the superior court * * *.' Reference to section 7 of that chapter ¹ and title discloses that the way to obtain review of an order granting a preliminary injunction entered in the Superior Court is by appeal, and Super.R.Civ.P. 73(a) says that such an appeal must be claimed within twenty days following entry thereof. Hence, the wife concluded in her memorandum that the third party respondents could have appealed as of right from the interlocutory decree and that consequently their motion for leave to file a petition for certiorari should have been denied. While she is technically correct it does not seem to us that the interests of justice will suffer if now, instead of quashing the writ as improvidently issued, we articulate the motion for leave to file as if it were a claim of appeal. So articulated it was claimed within twenty days of entry of the decree appealed from, and the case is therefore properly here for disposition. ²

Turning from the procedural to the substantive we find third party respondents-petitioners in these certiorari proceedings- -questioning whether the Family Court, as an incident to its consideration of the wife's petition for relief pendente lite, had jurisdiction to make them parties to the divorce proceedings, and, if so, whether it was an abuse of discretion to enjoin them in the manner described.

We approach these questions with the initial observation that the Family Court is a legislative creation having only the authority conferred upon it by statute. ³ State v. Zittel, 94 R.I. 325, 180 A.2d 455 (1962). While it is not ordinarily thought of as a court exercising equitable powers, it is no longer open to question that the Legislature endowed it with all of the powers, both legal and equitable, formerly exercised by the Superior Court and the Court of Domestic Relations, respectively, as adjuncts to what were once their exclusive jurisdictions in divorce matters. Industrial National Bank v. Isele, 108 R.I. 144, 273 A.2d 311 (1971); Rogers v. Rogers, 98 R.I. 263, 269, 201 A.2d 140, 144 (1964). That grant, while not all-encompassing, is nonetheless sufficiently comprehensive to permit injunctive relief against a husband whose contemplated disposition of his property is intended or apt to impair his ability to provide appropriately for the maintenance an support of his wife and children. Warren v. Warren, 36 R.I. 167, 89 A. 651 (1914).

Within these general bounds the Family Court certainly possessed discretionary power to enjoin not only the husband, but third party respondents as well. The Warren case makes this clear. The question for us is whether the record in this case justifies an exercise of judicial discretion, or whether instead the court acted in an illegal manner, or in favor of one who failed either to make out a prima facie case or was, without legal right, seeking to restrain a lawful act. Fritz v. Presbrey, 44 R.I. 207, 215, 116 A. 419, 423 (1922); Blackstone Hall Co. v. Rhode Island Hosp. Trust Co., 39 R.I. 69, 75-76, 97 A. 484, 487 (1916); Armour v. Hall, 38 R.I. 300, 95 A. 442 (1915).

In arguing for the propriety of what was decreed, the wife relies principally on Warren. There the key allegations were that the husband had fraudulently and without consideration conveyed practically all of his real estate to a third party '* * * for the purpose of preventing her (the wife) from obtaining alimony and surety therefor, and of thwarting the decrees and processes of the (c)ourt * * *', and that the third party respondents' 'complicity and participation in all of the (husband's) fraudulent practices,' if allowed to continue unchecked, would result in his estate being dissipated and diverted to the detriment of the wife's claim to alimony. ⁴ Warren v. Warren, supra at 186-187, 89 A. at 658.

Passing upon the sufficiency of those allegations the court said:

'We are of the opinion that it was not only proper, but necessary that this Company should be summoned in as it was; it was alleged to be a fraudulent grantee of respondent's real estate with full knowledge of the intended fraud; if these allegations were true, it was a mere naked trustee of said Warren, holding the legal title, and a participant in his fraudulent purposes. It was highly appropriate that it should be before the court to protect itself from these charges if they were not...