Lamarche v. Lamarche

• Decision Date: 25 February 1971
• Docket Number: No. 1111-M,1111-M
• Parties: Raymond L. LAMARCHE v. Vivian L. LAMARCHE. P.
• Court: Rhode Island Supreme Court

Page 860

273 A.2d 860

108 R.I. 213

Raymond L. LAMARCHE v. Vivian L. LAMARCHE.

No. 1111-M.P.

Supreme Court of Rhode Island.

Feb. 25, 1971.

[108 R.I. 219] Zimmerman, Roszkowski & Brenner, Irving I. Zimmerman, Gerald M. Brenner, Woonsocket, for plaintiff-respondent.

Fergus J. McOsker, Providence, for defendant-petitioner.

OPINION

JOSLIN, Justice.

This petition for a writ of certiorari was brought by a divorced wife to review the Family Court's refusal to 'strike and expunge' from the record an order suspending her former husband's obligation to make weekly payments for the support of their minor children as ordered by the final decree dissolving their marriage.

It appears from the records which have been certified that the parties were divorced in 1962, and that the final decree, insofar as it affected the children, awarded custody to the wife, granted the husband visitation rights, and required him to pay the wife the sum of $30 each week for their support.

Apparently the husband fully complied with his obligation to support the children until 1967. In that year the wife left this state taking the two children with her. Thereupon, the husband filed in the Family Court a paper designated 'Motion' in which he alleged, by his attorney, that his wife, over his protests, had changed her residence to an unknown address in the South thereby depriving him of the visitation rights granted him in the final divorce decree. He requested that his obligation to support the children be suspended, and that notice to the wife of that request be deferred pending ascertainment of her whereabouts. This motion was granted on May 18, 1967, ex parte without a hearing and without the wife receiving any notice thereof until about a month later.

During the next three years the wife received no support payments, and when she sued in the district court to recover the arrearages the suspension order was pleaded as a defense by the husband. The record does not disclose whether that defense prevailed, or whether the suit is still pending. In any event, the wife, claiming that the order constituted an 'attempt to amend the final decree herein without a date fixed for a hearing,' asked the Family Court in June 1970 to 'strike and expunge' the May 18, 1967 suspension order. Her motion was ruled 'out of order.' While the trial justice gave no reason for so ruling, he apparently believed that the one-year time limit for vacating judgments fixed by G.L.1956 (1969 Reenactment) § 9-21-2, ¹ precluded him from setting aside a 1967 suspension order in 1970. The wife, instead of appealing, commenced these certiorari proceedings.

There are threshold procedural problems. While they were not readily perceivable when we first read the wife's petition for certiorari and the husband's answer, they became quite apparent upon close examination of the certified records. The first of those problems arises because the trial justice's bench decision denying the wife's motion to 'strike and expunge' was not embodied in a decree.

Ordinarily the absence of a decree would be fatal. This is so because divorce proceedings follow the course of equity; and in equity, which speaks only through decrees, causes come to this court by appeal from the entry of a decree. Rounds v. Tefft, 96 R.I. 274, 190 A.2d 727; Tabor v. Tabor, 73 R.I. 492, 496, 57 A.2d 735, 737. If we ignore this deficiency-as we did in Rogers v. Rogers, 98 R.I. 263, 201 A.2d 140, and Pukas v. Pukas, 104 R.I. 542, 247 A.2d 427-and consider that what should have been done had in fact been done and that the trial justice's bench decision constituted a decree, there still remains the question of whether an application for a writ of certiorari is the appropriate method to seek review.

Here the wife could have immediately appealed the suspension order. Leighton v. Leighton, 48 R.I. 195, 136 A. 443; Ward .v Ward, 48 R.I. 60, 135 A. 241. Instead she delayed for more than three years and then moved to 'strike and expunge' that order from the record. The denial of that motion possessed those attributes of finality which made it an appealable order. Welden v. Grace Line, Inc., 404 F.2d 76, 77 (2d Cir. 1968); Russell v. Cunningham, 279 F.2d 797 (9th Cir. 1960); See Greenspahn v. Joseph e. Seagram & Sons, 186 F.2d 616 (2d Cir. 1951); 1 Kent, R.I.Civ.Prac. § 60.10 at 457. Moreover, under our practice an appeal is the customary way by which litigants seek review of an order denying a motion to vacate a judgment. Bloom v. Trudeau, R.I. 266 A.2d 417; Shannon v. Norman Block, Inc., R.I. 256 A.2d 214; Fields v. S. & M. Foods, Inc., R.I. 249 A.2d 892; Pate v. Pate, 97 R.I. 183, 196 A.2d 723; Mibury Atlantic Mfg. Co. v. Rocky Point Amusement Co., 44 R.I. 458, 118 A. 737. The availability of that remedy made the writ of certiorari unavailable for its scope, although broad, has never been extended to permit a consideration of alleged errors for the correction of which another vehicle for immediate review is expressly provided. Cohen v. Superior Court, 39 R.I. 272, 97 A. 794. Certiorari is not a substitute for an appeal and the writ was, therefore, improvidently issued. Although the case is not properly before us for review, we recognize that the welfare of the minor children of the parties is the heart of this litigation. This cannot be ignored. Were we to quash the writ without some reference, howsoever brief, to the substantive issues, the likelihood of...