Mendes v. Mendes

• Decision Date: 06 June 1973
• Docket Number: No. 946-A,946-A
• Citation: 305 A.2d 97,111 R.I. 571
• Parties: Albertina V. MENDES v. Ambrose C. MENDES. ppeal.
• Court: Rhode Island Supreme Court

Page 97

305 A.2d 97

111 R.I. 571

Albertina V. MENDES v. Ambrose C. MENDES.

No. 946-Appeal.

Supreme Court of Rhode Island.

June 6, 1973.

Pearlman & Pearlman, Thomas W. Pearlman, Providence, for petitioner

Leroy V. Marcotte, Providence, for respondent.

OPINION

DORIS, Justice.

This cause was heard before a justice of the Family Court on the wife's petition for divorce and the husband's motion in the nature of a cross-petition for divorce. At a hearing on the merits, before any testimony was taken, the petitioner moved to discontinue her petition. The trial justice denied the petitioner's motion but dismissed her petition with prejudice. Subsequently, the same justice granted the husband's motion to discontinue his motion in the nature of a cross-petition. The petitioner filed an appeal from a decree embodying those decisions as well as from certain other decrees which were entered during the pendency of this cause in the Family Court. In addition, the cause is here on the petitioner's appeal from a decision of the Family Court denying her motion to hold the respondent in contempt, denying her motion for support pending appeal, and denying her motion for counsel fees.

In order to place the issues involved in proper perspective, it is well to review the facts and the travel of the case.

On December 2, 1966, Albertina Mendes, the wife, hereinafter referred to as petitioner, filed a petition seeking a divorce from her husband, Ambrose Mendes, hereinafter referred to as respondent, on the ground of extreme cruelty. After a hearing on a motion for temporary allowances, an order was entered on February 2, 1967, for petitioner's support in the amount of $75 weekly. On February 20, 1967, petitioner Albertina filed a miscellaneous petition for relief and a motion to consolidate her divorce petition and the miscellaneous petition. On March 1, 1967, respondent Ambrose filed a motion in the nature of a cross-petition for divorce in the divorce action, alleging extreme cruelty on the part of petitioner. On April 7, 1967, petitioner's motion to consolidate the cases was denied in the Family Court. The petitioner appealed the denial of her motion to consolidate and this court, stating that the decree appealed from was interlocutory and not final, held it could be challenged only by a petition for certiorari and therefore dismissed the appeal. Mendes v. Mendes, 103 R.I. 734, 241 A.2d 297 (1968).

The original petition and the motion in the nature of a cross-petition were reached for trial and hearings were held on March 11, April 14, May 6 and May 15, 1969, in the Family Court. On March 11, 1969, before any testimony was taken, petitioner renewed her motion to consolidate the divorce petition and the miscellaneous petition. This motion was denied by the trial justice. Thereupon, petitioner moved to discontinue her petition for divorce. The trial justice did not grant the motion to discontinue, but instead ordered the original divorce petition dismissed with prejudice.

The cause then proceeded to hearing on respondent's cross-petition. After some days of hearing, respondent on May 6, 1969, moved to discontinue his cross-petition. The petitioner moved for an award of counsel fees for the prosecution of the original petition and for the defense of the cross-petition. The motion for counsel fees for the prosecution of the original petition was denied. The motion for counsel fees for the defense of the cross-petition was granted, but limited to the period from the date of the dismissal of the original petition to the date of the discontinuance of the cross-petition. The respondent's motion to discontinue the cross-petition was granted.

On May 16, 1969, petitioner filed a claim of appeal from the rulings of March 11, 1969, and the decision of May 6, and the decree of May 15. On June 13, 1969, the trial justice denied petitioner's motions to hold respondent in contempt for failure to make support payments, to award petitioner support pending appeal and to award petitioner counsel fees.

On August 13, 1969, petitioner, represented by different counsel, filed a petition seeking an absolute divorce alleging extreme cruelty and gross misbehavior on the part of respondent. An allowance of $60 weekly for support pendente lite was ordered on petitioner's motion for temporary allowances. On January 15, 1970, after hearing, the petition was denied and dismissed in the Family Court. Also, in March 1970, petitioner was awarded $25 weekly for support under an order in a petition filed by her under the provisions of the Uniform Reciprocal Support Act.

I

Before proceeding with the consideration of the various issues, we will consider respondent's contention that the appeal filed by petitioner on May 16, 1969, from the decision of March 11, 1969, was not within the time designated by the rules governing appeals, since said appeal was beyond the 20-day appeal period as set forth in said rules. As the basis for his contention respondent relies on G.L.1956 (1969 Reenactment) § 14-1-52 which reads as follows:

'From any final decree, judgment, order, decision, or verdict of the family court, there shall be an appeal to the supreme court, which appeal, in all civil cases except bastardy proceedings under chapter 8 of title 15, shall follow the procedure for appeal in civil actions as provided in chapter 24 of title 9. A decision granting a divorce shall be appealable upon entry and, except as otherwise provided by law, the correctness of such decision shall not be reviewable upon an appeal from a final decree for divorce entered in pursuance of § 15-5-23. Appeals in criminal cases wherein the family court exercises jurisdiction over adults, and in bastardy cases under chapter 8 of title 15 shall follow the procedure for appeal by way of bill of exceptions as provided in chapter 24 of title 9. The provisions of chapter 24 of title 9 and applicable procedural rules relating to the superior court shall apply to the family court in matters appealed from said family court, provided, however, that on appeal, the supreme court may by rule provide for certain circumstances as it may deem appropriate.'

Section 9-24-1 reads as follows:

'Any party aggrieved by a final judgment, decree, or order of the superior court in any civil action, may, within the time prescribed by applicable procedural rules appeal to the supreme court. Subject to the provisions of applicable procedural rules, such appeal shall be taken by filing a claim of appeal in the office of the clerk of the court from which the appeal is taken.'

Super.R.Civ.P. 73(a) states in part:

'When an appeal is permitted by law from the Superior Court to the Supreme Court the time within which an appeal may be taken shall be 20 days from the entry of the judgment appealed from unless a different time is provided by law * * *.'

The respondent argues that petitioner did not file her appeal from the decision of the trial justice on March 11, 1969, within the 20-day period prescribed by Super.R.Civ.P. 73(a) which governs appeals from the Family Court to this court. If said decision was final respondent's contention would prevail. However, in view of the circumstances and conditions prevailing in this matter, we hold said decision to be interlocutory in nature since there remained other matters to be disposed of at further hearings. Having determined said decision to be interlocutory in character, we rule that the time for the running of the appeal period did not commence until the decision of the trial justice on May 6, 1969, and therefore the appeal of petitioner is timely and properly before this court.

II

The petitioner contends that the trial justice committed prejudicial error when on April 7, 1967, he denied petitioner's motion to consolidate for hearing her petition for absolute divorce and her miscellaneous petition for relief under § 15-5-19 and argues that by reason of said refusal petitioner was unable to properly prosecute her petitions.

This court in Marandola v. Hillcrest Builders, Inc., 102 R.I. 46, 49-50, 227 A.2d 785, 788 (1967) stated:

'Consolidation of cases is for the purpose of trial only, and does not operate as a merger of the separate cases into one case. It merely permits them to be tried together before the same justice or jury and thus avoid unnecessary delay and expense in the administration of justice. The rule as thus stated in Giguere v. Yellow Cab Co., 59 R.I. 248, (195 A. 214) is the same as that provided by Rule 42 of the Rules of Civil Procedure.'

Independent of statute, the trial court has inherent power to order that several cases pending before it be tried together where they are of the same nature, from the same act or transaction, involve the same or like issues, depend substantially on the same evidence, even though it may vary in its details in fixing responsibility, and where such a trial will not prejudice the substantial rights of any party. Whether two or more cases should be tried together is a question which must necessarily be left to the sound discretion of the after application of the foregoing principles, and its action in this connection will not be revised or interfered with unless its discretion was clearly abused. Giguere v. Yellow Cab Co., 59 R.I. 248, 251, 195 A. 214, 216 (1937).

Clearly, petitioner here, arguing vigorously that her case has been prejudiced, misconceives the thrust of a motion to consolidate, since the rule clearly indicates that even when the motion to consolidate is granted the parties still retain the same rights as they would have if the cases were heard separately. In other words, consolidation is for convenience only, and the granting of a motion rests on the sound discretion of the trial justice. We have examined the record and considered the arguments of petitioner which wer briefed rather extensively on this point, albeit not very persuasively, and we have been unable to perceive that the trial justice...