Murphy v. Murphy

• Decision Date: 16 February 1984
• Citation: 471 A.2d 619
• Parties: Katherine MURPHY v. Dennis J. MURPHY. 81-214-Appeal.
• Court: Rhode Island Supreme Court

Page 619

471 A.2d 619

Katherine MURPHY v. Dennis J. MURPHY.

81-214-Appeal.

Supreme Court of Rhode Island.

Feb. 16, 1984.

Joseph T. Houlihan/Kathleen Managhan, Corcoran, Peckham & Hayes, P.C., Newport, for plaintiff.

John D. Lynch, Warwick, for defendant.

OPINION

BEVILACQUA, Chief Justice.

This is an appeal from a decree of the Family Court which granted the plaintiff's petition for divorce on the ground of irreconcilable differences. The defendant, Dennis J. Murphy, objects to the assignment of property pursuant to G.L.1956 (1981 Reenactment) § 15-5-16.1, as well as an award of transportation costs.

The pertinent facts briefly summarized are as follows. The parties were married in 1954 and continued to live together until 1978 when defendant left the marital residence to care for his ailing mother. In 1979, after a failed attempt at reconciliation, plaintiff filed for divorce. The plaintiff was granted temporary relief including custody of the couple's minor child, exclusive use of the marital domicile, and $300 support every two weeks.

At the hearing on the divorce petition, defendant was called as an adverse witness to testify concerning the couple's real estate holdings. Included in this property was land that defendant had acquired from his mother by gift or inheritance.

In September of 1980, plaintiff was granted a divorce on the ground of irreconcilable differences. The parties were granted joint custody of the minor child. The plaintiff was awarded alimony and child support in the sum of $300 every two weeks. An equitable division of property was made. Pursuant to such division, defendant was ordered to convey to plaintiff the marital domicile in Middletown, as well as other property in Middletown and Newport, including a one-half interest in certain securities. A decree was entered to this effect.

On appeal, a stay of the decree was granted on condition that the order for temporary relief remain in full force and effect. Subsequently, plaintiff filed a motion to modify, seeking a sum of money from defendant to pay for her transportation. The motion for modification was granted, and defendant was ordered to pay plaintiff $200 a month for forty-eight months or until final disposition of the case, whichever occurs first.

On appeal, defendant presents three issues: (1) whether property acquired by gift or inheritance should not be the subject of assignment of property pursuant to § 15-5-16.1; (2) whether § 15-5-16.1, as amended by P.L.1982, ch. 403, § 2 during the pendency of this case should apply retrospectively; and (3) whether the trial justice erred in ordering defendant to pay plaintiff's transportation costs pending appeal.

I

The defendant contends that property acquired by gift or inheritance should not be the subject of an assignment of property. He argues that because property division is based on the theory of joint contribution to the marital partnership, gifts to one spouse cannot be considered a product of the marital relationship and cannot be assigned to the other spouse. The right to an assignment of property did not exist at common law. This right was created by statute and is governed exclusively by § 15-5-16.1. In order to determine whether property acquired by one spouse by gift or inheritance is exempt from assignment, we must look to the language of the statute.

In construing a statute, this court must give effect to all parts of a statute; the words used therein must be given their plain and customary meaning. Rhode Island Chamber of Commerce v. Hackett, R.I., 411 A.2d 300, 303 (1980); Podborski v. Haskell Manufacturing Co., 109 R.I. 1, 8, 279 A.2d 914, 918 (1971). If the statutory language is clear and unambiguous, the statute must be interpreted literally. Rhode Island Chamber of Commerce v. Hackett, and Podborski v. Haskell Manufacturing Co., both supra. The meaning expressed is conclusively presumed to be the meaning intended.

In the instant case, § 15-5-16.1 provides that in making an equitable division of property, "the court may assign to either the husband or wife a portion of the estate of the other." Where, as here, the language is unambiguous and the words are plain and clear, "[n]o interpretation is required or permitted." Statewide Multiple Listing Service, Inc. v. Norberg, 120 R.I. 937, 941, 392 A.2d 371, 373 (1978); Pacheco v. Lachapelle, 91 R.I. 359, 361-62, 163 A.2d 38, 40 (1960).

In deciding that gifts and inheritances are not excluded from an assignment of property under § 15-5-16.1, we availed ourselves of the rule of construction that states that an express enumeration of items in a statute indicates a legislative intent to exclude all items not listed. See generally 2A Sands, Statutes and Statutory Construction § 47.23 (4th ed. 1973). Although this principle is an aid, it should be used cautiously to further rather than to defeat legislative intent. Volpe v. Stillman White Co., R.I., 415 A.2d 1034, 1036 (1980). However, its application is most appropriate to this particular statute. The language of § 15-5-16.1 clearly and unambiguously excludes only one type of property from an equitable division of property. Property acquired by gift and inheritance is not included as an exception. ¹ Therefore, after considering the language of § 15-5-16.1, we determine that the Legislature mandated that only property acquired prior to a marriage is an exception to the statute and thus property acquired by gift or inheritance is clearly subject to equitable distribution.

II

The defendant further claims that even though the Legislature amended § 15-5-16.1 during the pendency of this case, the provisions should be applied retrospectively.

Section 15-5-16.1 as originally enacted provides that in making an equitable distribution of the marital property, "the court may assign to either the husband or wife a portion of the estate of the other." When it originally enacted the statute, the Legislature excluded from assignment only "property or an interest therein held in the name of one of the parties if said property was held by said party prior to the marriage * * *." Id. The court may, however, assign any income which is derived therefrom during the course of the marriage. Id.

In amending § 15-5-16.1, the Legislature further provided "[t]he court also shall not assign property or an interest therein which has been transferred to one of the parties by inheritance before, during or after, the term of marriage." Public Laws 1982, ch. 403, § 1. Additionally, it specifically added that, "[t]his act shall take effect upon passage and shall apply to all orders entered by the family court after the date of passage." (Emphasis added.) Public Laws 1982, ch. 403, § 2.

It is a well-established principle in this jurisdiction that statutes and their amendments are given only prospective application. Fox v. Fox, 115 R.I. 593, 596, 350 A.2d 602, 603 (1976); Norton v. Paolino, 113 R.I. 728, 734, 327 A.2d 275, 278 (1974); State v. Hillman, 84 R.I. 396, 399, 125 A.2d 94, 96 (1956). It is only when, by strong, clear language or necessary implication, that the Legislature manifests its intent to give the statute retroactive effect ² that the courts will apply it retrospectively. State v. Healy, R.I., 410 A.2d 432, 434 (1980); State v. Mulholland, 117 R.I. 321, 323, 366 A.2d 153, 154 (1976).

The defendant, in support of his position, places heavy reliance on cases in which this court retroactively applied statutes. E.g., Carter v. Carter, R.I., 413 A.2d 55 (1980); Zaharakos v. Zaharakos, 118 R.I. 387, 374 A.2d 101 (1977). However, his dependence on these cases is misplaced. In Zaharakos we said that "in this case there is no doubt that the Legislature intended the statute to have retrospective effect." ³ Id. at 389, 374 A.2d at 102. See also Carter v. Carter, 413 A.2d at 56 (basing decision to apply amendment to case at bar retrospectively on Zaharakos ).

The 1982 amendment to § 15-5-16.1 specifically provided for prospective application of its provisions to "orders " entered after passage of the act. Public Laws 1982, ch. 403, § 2. There is nothing in the act which even impliedly suggests that the amendment should be retroactively applied on appeal to an order entered approximately one and one-half years prior to the enactment. Thus, we find no merit in defendant's argument that inherited property is excluded from an assignment of property.

III

The defendant also challenges an award of transportation fees to plaintiff pending appeal. He argues that the judge erred in making this award because he did not apply the proper standard to the modification of the earlier temporary relief order.

A trial court having jurisdiction under § 15-5-16 may make an award for temporary relief in the proper case. A temporary support order continues in existence pending appeal until further order of the court that originally entered the order. See Sundlun v. Sundlun, 103 R.I. 25, 37, 234 A.2d 358, 365 (1967), aff'd, 108 R.I. 603, 277 A.2d 918 (1971). A party may,...