Parrillo v. Parrillo

Decision Date11 July 1985
Citation495 A.2d 683
CourtRhode Island Supreme Court
PartiesGlenn R. PARRILLO v. Lori H. PARRILLO. 83-68-Appeal.
OPINION

SHEA, Justice.

In this case, which involves the issue of child custody, the father appeals from an order entered in the Family Court that denied his motion to modify the terms of a final divorce decree awarding custody to the mother. We affirm.

On November 3, 1978, a final divorce decree was entered by the Family Court dissolving the marriage between Lori H. Parrillo (the mother) and Glenn R. Parrillo (the father). The decree awarded the mother physical custody of the parties' twin sons, Jacob and Joshua, born on September 18, 1977, and awarded the father visitation rights with the children on each Sunday afternoon, on Christmas, on Thanksgiving, and on the children's birthday.

After the entry of the final decree, the parties, by informal agreement, expanded the father's visitation rights to include the entire weekend and several days during the week. From April 25, 1981, until May 1, 1981, the father and his parents, with whom he lived, cared for the children on a full-time basis while the mother was hospitalized for an operation.

On May 13, 1981, the father filed a petition for a change of custody, alleging that the mother "continually has unrelated male friends at her apartment * * * [who] have spent the entire night" and that she leaves the children "unattended for long periods of time which has resulted in the children sustaining injuries which necessitated medical treatment." On May 14, 1981, the Family Court issued an ex parte order granting his petition and awarding him physical custody of the children. On June 4, 1981, the Family Court denied the mother's oral motion to vacate the ex parte order. On July 27, 1981, the Family Court again denied her motion to vacate the order, reaffirmed the original ex parte order, and awarded her visitation "each and every Tuesday and Thursday from the hours of 2:00 p.m. to 6:00 p.m., and additionally * * * each and every Friday from 4:00 p.m. to Saturday at 4:00 p.m."

On November 18 and November 20, 1981, hearings on the ex parte order were held in Family Court. Extensive testimony was taken from the paternal grandmother, the father, several of his relatives, the mother's psychotherapist, and two social workers.

Prior to these hearings, the trial justice had received a letter from the maternal grandmother in which she both complained about the length of time that had elapsed since the issuance of the ex parte order and alluded to a meeting she had had with the trial justice. The father contended that this letter destroyed the trial justice's ability to hear the case impartially. The trial justice denied the father's motion to pass the case and declined to recuse himself.

In an order entered on March 24, 1982, the trial justice returned custody of the children to the mother but awarded physical possession of the children to the father from Sunday evening to Friday afternoon "so long as he resides in the home of his parents." The mother was awarded visitation rights on Tuesday and Thursday afternoons and each weekend from Friday afternoon until Sunday evening. The order further specified that "this matter is continued until June 21, 1982 for review."

On June 21, 1982, a consent decree "by agreement of all the parties" was entered that continued the arrangement provided for in the order of March 24 and was "designed to give [the mother] an opportunity to stabilize herself and to obtain employment and her own home or apartment and to become more self-sufficient and self-reliant and to restructure things for herself." Review was scheduled for June 21, 1982, "to see if the plan [was] working." 1

At the scheduled review the trial justice, after hearing testimony from the mother, the maternal grandmother, the father, and the paternal grandmother, determined that there was not a "scintilla of evidence that men spent the entire night with [the mother]" and that "a lot of allegations in [the father's petition] * * * have not been proven." In addition, he denied the father's motions for the appointment of a guardian ad litem to represent the interests of the children and for a mental examination of the mother.

In his decision rendered on June 22, 1982, the trial justice returned physical possession of the children to the mother. In the decision, he noted that

"there's nothing * * * in any shape or manner that proves the allegations in the petition upon [which] the ex parte order was based. Mrs. Parrillo [mother] is now off welfare. She's working. She's living with her mother. She's in a more stable circumstance."

Although the trial justice's order was not entered until July 29, 1982, the father filed a notice of appeal to this court on July 14, 1982. 2

The father contends on appeal that the trial justice erred in denying his motion to pass and in refusing to recuse himself from hearing the case since he was prejudiced by the letter from the maternal grandmother and because the meeting between the trial justice and the grandmother violated Sup.Ct.R. 48, Canon 15. 3

It is well established that a party claiming judicial prejudice must

"establish affirmatively that the trial justice had personal bias or prejudice by reason of a preconceived or settled opinion of a character calculated to impair his impartiality seriously and to sway his judgment." Cavanagh v. Cavanagh, 118 R.I. 608, 621, 375 A.2d 911, 917 (1977).

Moreover, this court has stated that

"[b]efore a judge is required to recuse in order to avoid the appearance of impropriety, facts must be elicited indicating that it is reasonable for members of the public or a litigant or counsel to question the trial justice's impartiality." State v. Clark, --- R.I. ---, ---, 423 A.2d 1151, 1158 (1980).

No one disputes that the trial justice received the letter from the grandmother and that he met with her to discuss her complaints about the delay in scheduling a hearing on the ex parte order. However, there is nothing in the record to suggest that he participated in any discussions on the merits of the case. This court has noted that "[s]uch conferences on housekeeping items show neither a prejudicial state of mind nor a denial of a fair hearing" and do not constitute a violation of Canon 15. Cavanagh v. Cavanagh, 118 R.I. at 623, 375 A.2d at 918.

Since the father has neither established any personal bias or prejudice on the part of the trial justice nor elicited facts to show that any of his actions raised reasonable questions about his impartiality, we conclude that the trial justice did not err in declining to recuse himself.

The father also contends that the trial justice failed to take into account the evidence regarding the best interests of the children during the trial and in rendering his decision.

Absent an abuse of discretion, we will not disturb the trial justice's decision refusing to modify a decree giving a party permanent custody. See Veach v. Veach, --- R.I. ---, ---, 463 A.2d...

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4 cases
  • J.A.R. v. Superior Court In and For County of Maricopa
    • United States
    • Arizona Court of Appeals
    • June 28, 1994
    ...discretion in refusing to appoint guardian ad litem where no abuse or neglect of child is asserted in custody dispute); Parrillo v. Parrillo, 495 A.2d 683, 686 (R.I.1985) (father failed to show basis for appointment of guardian ad litem for 3-year old children in modification proceeding whe......
  • Krivitsky v. Krivitsky
    • United States
    • Rhode Island Supreme Court
    • April 17, 2012
    ...his impartiality seriously and to sway his judgment.” Id.; see also State v. Howard, 23 A.3d 1133, 1136 (R.I.2011); Parrillo v. Parrillo, 495 A.2d 683, 685 (R.I.1985). It does not appear from the record that Brian moved for the recusal of the hearing justice 20 or objected to the general ma......
  • D'ONOFRIO v. D'ONOFRIO
    • United States
    • Rhode Island Supreme Court
    • October 21, 1999
    ...inherent power to appoint a guardian ad litem whenever it appears that there are interests of minor to be protected." Parrillo v. Parrillo, 495 A.2d 683, 686 (R.I.1985) (citing Zinni v. Zinni, 103 R.I. 417, 421, 238 A.2d 373, 376 (1968)). Pursuant to an order of the court entered in January......
  • Olson v. Olson
    • United States
    • Rhode Island Supreme Court
    • October 29, 1997
    ...The burden of showing this change is on the moving party and it must be shown by a preponderance of the evidence. Parrillo v. Parrillo, 495 A.2d 683, 685 (R.I.1985). Once a sufficient change in circumstances has been shown, the trial justice is guided by the best interests of the child. Ken......

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