Kelley v. Kelley, 2011
| Decision Date | 07 July 1950 |
| Docket Number | No. 2011,2011 |
| Citation | 77 R.I. 229,74 A.2d 452 |
| Parties | KELLEY v. KELLEY. Eq. |
| Court | Rhode Island Supreme Court |
William R. Goldberg, Pawtucket, for petitioner.
James A. McGuirk, Providence, for respondent.
This divorce proceeding was before the superior court on the motion of respondent to amend the final decree entered therein by awarding her, in place of petitioner, the custody of the two minor children of the parties. After a hearing a decree granting such motion was entered in that court. Thereafter petitioner duly prosecuted his appeal to this court.
In this case the original divorce petition alleged that respondent had been guilty of extreme cruelty and gross misbehavior and the petition was granted on the ground first mentioned. At that time the custody of the two children was given to petitioner. It appears from the evidence that when respondent's motion for change of custody of the children, one a boy and the other a girl, was heard in the superior court they were respectively twelve and six years of age. The evidence also shows that prior to the disposition of the divorce petition the respondent moved to the state of New Hampshire where she eventually married again and had a child by her second husband. They live with her second husband's father in an eight-room house in a rural district in that state.
The petitioner who has a contracting business, chiefly for the installation of gasoline equipment and who has not remarried, lives in Pawtucket in this state. His father and mother, the former a retired police officer, also live there but at a different address. Both children have been attending school in Pawtucket. The petitioner and his son live together and his daughter lives with her grandparents. The petitioner ordinarily sees both children every day and when he is working his father goes to the son's house where the family lived before the divorce.
It is unnecessary to set out the evidence in full. The superior court and the parties recognized that it is well settled in passing on a motion such as the one before the court the welfare of the children is the chief and decisive consideration. Budlong v. Budlong, 51 R.I. 113, 152 A. 256. It should be observed, however, that the motion did not seek an original fixing of the custody of the children. The superior court had already performed that duty when the divorce was granted, and the present motion merely requests a change in that custody. Clearly, therefore, the respondent, who is now pressing the motion, had the burden of showing by a fair preponderance of the evidence that because of altered conditions and circumstances or for other good reasons such a change of custody was necessary in the interest of the children's welfare.
When he granted the motion it is plain that the trial justice believed he was acting primarily for the welfare of the children. In rendering his...
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...law as set forth in §§ 14-1-3(H) and 14-1-32. The respondent next argues that the trial justice erred when he relied on Kelley v. Kelley, 77 R.I. 229, 74 A.2d 452 (1950) wherein this court held that in custody cases, the welfare of the children must control. He contends that the trial justi......
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King v. King, 73-205-A
...98 R.I. 454, 457, 204 A.2d 431, 433 (1964); Lawrence v. Lawrence, 85 R.I. 13, 16, 125 A.2d 218, 220 (1956); Kelley v. Kelley, 77 R.I. 229, 231, 74 A.2d 452, 453 (1950). In our opinion, the father has met the burden of proof on the question of the requisite change in circumstance or conditio......
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Kenney v. Hickey, 83-366-A
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Zinni v. Zinni
...custody of a minor child, the controlling factor is that which is the best interest of the child for the time being. Kelley v. Kelley, 77 R.I. 229, 74 A.2d 452 (1950), and Loebenberg v. Loebenberg, 85 R.I. 115, 127 A.2d 500 Here, the trial justice found as a fact that both parents were fit ......