Rivard v. Rivard., 811.
| Decision Date | 17 July 1944 |
| Docket Number | No. 811.,811. |
| Citation | 38 A.2d 771 |
| Parties | RIVARD v. RIVARD. |
| Court | Rhode Island Supreme Court |
OPINION TEXT STARTS HERE
Aram A. Arabian, of Providence, for Charlotte M. Rivard.
Ira Marcus, of Providence, for Andrew J. Rivard.
This is a petition for a writ of certiorari to the superior court. The writ was issued, and the records in question were duly certified to this court.
The records thus certified show that, on February 10, 1944, Charlotte M. Rivard, hereinafter referred to as the wife, filed a petition for divorce from bed, board and future cohabitation with Andrew J. Rivard, the petitioner here, who will hereinafter be referred to as the husband. The divorce petition also prayed for support for the wife, for the custody and support of a minor child, and for the allowance to the wife of the household furniture of the parties.
The petition for divorce was heard upon its merits by a justice of the superior court on March 27, 1944. After reviewing and discussing the evidence, he decided as follows: (Italics ours) He then proceeded to enter the following orders as part of his decision: (1) The custody of the child was given to the wife, under certain conditions; (2) the husband was to pay $10 a week for the support of the child; (3) he was to surrender a certain life insurance policy to the wife and to pay the premiums on all such policies held by the parties; (4) he was to divide equally between himself and his wife the money in the bank and the “Liberty” bonds held by him; and (5) he was either to divide the household furniture with his wife, or, in the event that he sold it, he was to give to his wife one half the selling price, which must be a reasonable selling price. The proceedings in the instant case were thereupon brought by the husband on the ground that, since the trial justice had denied the petition for divorce, he was without jurisdiction to make any of the above-mentioned orders.
We do not intend to restate in this case what we said in the very recent case of White v. White, R.I., 36 A.2d 661. In that case we held that the trial justice, who there denied and dismissed a petition for absolute divorce after a hearing on its merits, was then without jurisdiction to enter an order at that same time in reference to the custody of a minor child under such petition. In the instant case the justice denied but did not dismiss the divorce petition here involved with the explanation and orders hereinbefore mentioned. Therefore, the controlling question in this case, as it was in the White case, supra, is whether a trial justice, who denies a petition for divorce on its merits, has jurisdiction to append to such a decision, at the time that it is rendered and as an integral part thereof, additional orders affecting the custody of children or the property rights of the parties.
In the determination of this narrow question, we consider inapplicable all decisions of this court and language culled therefrom where a petition for divorce was granted and at the same time certain orders were entered in connection with such decision. Furthermore, we are not here concerned with any question of jurisdiction over interlocutory matters which may come up for determination before a justice of the superior court after the filing of a bill of exceptions by the losing party to review a decision which denied a petition for divorce on its merits.
In the instant case various contentions are made by the wife in support of the decision as rendered by the trial justice. Her first contention is that certiorari will not lie if there is any competent evidence to support the decision under consideration; that in this case the trial justice found certain “exigencies” which led him to enter the...
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