Pari v. Pari, s. 87-550-M

• Decision Date: 09 May 1989
• Docket Number: Nos. 87-550-M,s. 87-550-M
• Citation: 558 A.2d 632
• Parties: Cathy R. PARI v. Thomas A. PARI, Jr. P., 88-49-Appeal.
• Court: Rhode Island Supreme Court

Page 632

558 A.2d 632

Cathy R. PARI v. Thomas A. PARI, Jr.

Nos. 87-550-M.P., 88-49-Appeal.

Supreme Court of Rhode Island.

May 9, 1989.

Richard D. Boriskin, Providence, for plaintiff.

Colleen Crudele, Steven N. Ortoleva (Ortoleva, Chiodo & Breggia), Providence, for defendant.

OPINION

MURRAY, Justice.

Cathy Pari filed a complaint for divorce from her husband, the defendant Thomas Pari. The grounds for divorce were irreconcilable differences. The defendant never answered the divorce complaint or participated in the hearing on the divorce. The divorce was granted in the form of a Decision Pending Entry of Final Judgment. Among items the court awarded to the plaintiff were child support and the marital domicile. This divorce judgment, in the form of a Decision Pending Entry of Final Judgment, is not appealed. Upon receiving notification that the divorce had been granted and assets distributed, the defendant obtained an attorney and filed a motion to vacate the judgment under Rule 60(b) of the Rules of Procedure for Domestic Relations. This motion was denied. It is the denial of this motion that the defendant appeals both by direct appeal and through a writ of certiorari. The appeal and the writ have been consolidated in the present case. We affirm the judgment below and quash the writ heretofore issued.

The facts are as follows. Cathy and Thomas Pari married on February 13, 1977. The couple had two children, the second of whom was born November 24, 1984. Prior to October of 1985, defendant was a production manager earning $375 per week. He left that job to start his own business in November of 1985. Differences arose between the spouses due to their financial situation. On approximately June 1, 1986, the Paris separated. Approximately five months later, Cathy Pari filed a complaint for divorce. The defendant was personally served with the divorce complaint and summons. The spouses and Cathy Pari's lawyer attempted to settle their affairs regarding property distribution and support. On one occasion, defendant brought books and records from his business for plaintiff and her attorney to examine. However, the parties could not reach an amicable settlement. Both parties agree that plaintiff's lawyer advised Thomas Pari that the divorce could and would be contested and urged him to retain an attorney. On June 10, 1987, a hearing was held on the divorce complaint.

Thomas Pari was not present at the hearing. He also did not file an appearance in the divorce action or obtain representation by an attorney until after the Decision Pending Entry of Final Judgment was entered. At the hearing, Cathy Pari testified that during the marriage she had always been the primary caretaker of the two children while also working outside the home. She testified that she was earning approximately $95 net per week from her job, but that she was in a temporary position that would soon terminate. The marital domicile was in both spouses names and it had been purchased with joint funds. During the marriage both Cathy and Thomas Pari contributed to mortgage payments of $465 monthly. Cathy Pari also testified that it was she and her father who primarily attended to the upkeep of the house. Although plaintiff did not testify on this topic, the house was a duplex, half of which was rented for $375 monthly. At the hearing Cathy Pari submitted a DR6 form, which is a document used in divorce proceedings to set forth the assets of each party. The rental information was listed on the DR6 form.

As to her husband's earnings, Cathy Pari testified that before going into business for himself, Thomas Pari was earning $375 gross per week. She stated that she did not know how much he was making now that he had started his own business. The defendant had been contributing support money voluntarily since he left. The plaintiff testified that at present he was contributing $80 per week, but the DR6 form listed his support payments as $100 per week.

In the Decision Pending Entry of Final Judgment entered on June 15, 1987, the trial justice granted the divorce. He awarded custody of the children to plaintiff, and ordered defendant to pay support of $100 per week plus an additional $100 per week toward child-care expenses. The trial justice awarded the marital domicile, its furnishings, and a car to Cathy Pari. The defendant was ordered to maintain health insurance for plaintiff and the two children. Thomas Pari was notified of these results by mail.

On June 22, 1987, an attorney entered an appearance for defendant. On July 29, 1987, defendant's attorney filed a motion to vacate the judgment on the grounds of excusable neglect, fraud, and misrepresentation, along with an affidavit signed by Thomas Pari setting forth facts that could constitute a meritorious defense. A hearing on the motion to vacate was held. At that hearing, Cathy Pari testified that her old job had terminated, and in August of 1987 she found a new position. She also stated that the reason she did not testify about her rental income at the earlier divorce hearing was because when she was questioned about her income, she thought these questions referred to wages. Thomas Pari also testified, stating that prior to the divorce hearing he was contributing child support of over $80 per week, and that at the time of the divorce hearing plaintiff was aware of his income from his new business. The motion to vacate was denied. The defendant filed a notice of appeal of the denial of this motion. Because of defendant's uncertainty as to whether a ruling on a motion to vacate was appealable, a petition for a writ of certiorari was also filed. The denial of a motion to vacate is appealable. The petition for writ of certiorari was granted and has been consolidated with the appeal.

There are two issues presented. First, whether the trial justice erred in denying defendant's motion to vacate the Decision Pending Entry of Final Judgment because of excusable neglect, fraud, or misrepresentation. Second, whether the trial justice erred in applying the equitable-distribution statute as he applied the statute to erroneous facts. We find no error and affirm the judgment below.

I

A motion to vacate a judgment rests within the sound discretion of the trial court and a trial court's ruling on such a motion will be reversed only upon a demonstrated and clear abuse of discretion. O'Hearn v. O'Hearn, 506 A.2d 78, 79-80 (R.I.1986). Rule 60(b) of the Rules of Procedure for Domestic Relations sets forth the circumstances under which a judgment may be vacated. It affords relief from a final judgment on a number of bases, including excusable neglect, fraud, and misrepresentation. The Rule states:

"[T]he court may relieve a party * * * from a final judgment, order, or proceeding for the following reasons: (1) * * * excusable neglect * * * (3) fraud * * * misrepresentation * * * ."

The wording of Rule 60(b) of the Rules of Procedure for Domestic Relations and the wording of Rule 60(b) of the Superior Court Rules of Civil Procedure are identical. In re Lisa Diane G., 537 A.2d 131, 133 (R.I.1988). Rule 60(b) is meant to provide a single procedural means for seeking relief from judgments that have become final. Reporter's Notes, R. of Proc. for Dom. Rel. 60; Reporter's Notes, Super. R. Civ. P. 60. As both Rules have identical wording and purpose, Superior Court precedents regarding its Rule 60(b) may be drawn upon to interpret Rule 60(b) under the Rules of Procedure for Domestic Relations.

A

Excusable neglect that would qualify for relief from judgment is generally that course of conduct which a reasonably prudent person would take under similar circumstances. Clergy and Laity Concerned v. Chicago Board of Education, 586 F.Supp. 1408, 1410 (N.D. Ill.1984). Case law setting forth what constitutes excusable neglect under Superior Court Rule 60(b) includes King v. Brown, 103 R.I. 154, 235 A.2d 874 (1967). In King, an attorney's unexplained failure to defend in an action in which a final judgment had been entered did not constitute grounds for relieving the defendant from a default judgment. Id. at 156-57, 235 A.2d at 875-76. However, a case in which a court properly set aside a default judgment is Greco v. Safeco Ins. Co., 107 R.I. 195, 266 A.2d 50 (1970). In Greco, the complaint and summons were served on the state insurance commissioner, who immediately forwarded them to the home office of the defendant corporation in Seattle, Washington. Id. at 198, 266 A.2d at 52. The papers were then forwarded to a regional office in New Jersey, from whence they were forwarded to the local office in Providence. Once back in Rhode Island, the complaint and summons were mailed to the company's attorney who promptly filed an answer, not knowing that the default judgment had already been entered. Id. The corporation's actions were held to constitute excusable neglect.

It is true that excusable neglect required under the Rules of Procedure for Domestic Relations to set aside a Family Court judgment may be a less stringent standard than that which is needed to set aside other types of default judgments. See Carvalho v. Carvalho, 97 R.I. 132, 137, 196 A.2d 164, 167 (1963). However, in both the Family Court and the Superior Court, unexplained neglect alone will not justify granting a motion to vacate. Accord Graham Architectural Products Corp. v. M & J Construction Co., 492 A.2d 150, 151 (R.I.1985). Similarly, in both courts the existence of excusable neglect is a question of fact and must be established by evidence. Id.

In the case at bar, defendant maintains that his conduct in not answering the divorce complaint was excusable neglect. He states that although he did participate in settlement negotiations, he did not retain an attorney to answer the divorce complaint because he could not afford to pay one. Thomas Pari also maintains that he did not enter an appearance in the divorce proceeding because he did not know what constituted...