Rogers v. Rogers
| Decision Date | 04 June 1964 |
| Docket Number | No. 1615,1615 |
| Citation | 98 R.I. 263,201 A.2d 140 |
| Parties | Jesse ROGERS v. Phyllis Kay ROGERS. M. P. |
| Court | Rhode Island Supreme Court |
Edwards & Angell, Gerald W. Harrington, Providence, for petitioner.
Dick & Carty, Joseph E. Marran, Jr., Providence, for respondent.
This is a petition for a writ of certiorari to the family court to certify and to send to this court a full and complete transcript and all papers constituting the records upon which the decision of that court filed on February 11, 1964 in divorce No. FC-32A-P, entitled Phyllis Kay Rogers v. Jesse Rogers, was rendered to the end that it may be quashed as being beyond the jurisdiction of the family court. We issued the writ, and in compliance therewith the records were duly certified.
It appears that Phyllis Kay Rogers filed a petition for an absolute divorce in the family court and coincidentally therewith a motion for an allowance and other relief pendente lite. After hearing on the motion an interlocutory decree was entered awarding her temporary custody and a sum for the support of the minor children as well as for herself. Thereafter she moved for a modification of that decree alleging a change of circumstances, and also filed a motion for an accounting averring that she and her husband jointly own a motel in New Hampshire and praying that he render an accounting of the preceding season's profits at the motel and be ordered to turn over to her a proportionate share thereof. Both motions were heard together by a justice of the family court who in a written decision expressly refrained from making an order on the motion for a modification, decided that it was within his jurisdiction to order an accounting, and 'set the case down for further hearing.'
Thereupon Jesse Rogers, respondent in the divorce action and petitioner here, applied to this court for certiorari whereupon Phyllis Kay Rogers, petitioner in the divorce proceedings and respondent here, moved to dismiss the petition for a writ of certiorari which motion was denied without prejudice, however, to her right to a later determination thereof. Jesse Rogers is hereinafter referred to as petitioner and Phyllis Kay Rogers as respondent.
At the outset we note that the petition herein was filed subsequent to the decision of the trial justice, but prior to the entry of a decree thereon. Proceedings in divorce in this state follow the course of equity to the extent that the same are applicable, and in divorce causes just as in those in equity a decision of the court such as we here review should be embodied in a decree. Scolardi v. Scolardi, 42 R.I. 456, 108 A. 651. Because equity speaks only through decrees, it is only after the entry thereof that a cause in equity can come to this court for consideration. Tabor v. Tabor, 73 R.I. 491, 496, 57 A.2d 735. Mindful as we are of these well-settled principles, when we ordered the writ to issue we construed, and we do now construe, the decision of the family court as though it were an interlocutory decree ordering an accounting between the parties. See Rivard v. Rivard, 70 R.I. 305, 38 A.2d 771.
We now come to the question of the motion to dismiss. This court has long recognized certiorari as an appropriate remedy through which to exercise its supervisory jurisdiction to review actions taken by inferior tribunals without or in excess of jurisdiction and since the adoption of art. XII, sec. 1, of amendments to our state constitution, and the enactment of sec. 2 of the Court & Practice Act of 1905, now G.L.1956, § 8-1-2, to exercise its appellate and revisory jurisdiction in review of actions of such tribunals taken in the exercise of their jurisdiction. White v. White, 70 R.I. 48, 36 A.2d 661, 151 A.L.R. 1374; State v. Coleman, 58 R.I. 6, 190 A. 791, 109 A.L.R. 787.
Ordinarily, as urged by respondent in her motion to dismiss, we do not grant certiorari where the movant has another adequate remedy whereby his rights can be determined by this court, or where the petition seeks a review of an interlocutory decision, or where to grant certiorari will result in bringing a matter before us in piecemeal fashion. This does not mean, however, that we will no depart from what is customary and usual if there are unusual or exceptional circumstances. Conte v. Roberts, 58 R.I. 353, 192 A. 814.
Here the decision of the trial justice is sweeping and all embracing. He asserts exclusive jurisdiction in the family court not only 'over all matters concerning a family unit, whether it relates to the trouble in the family, property, real and personal, and/or intangible,' but also authority in that court as between husband and wife 'to partition real estate, appoint receivers, reach the interest in trust fund estates, and order an accounting * * *.' The questions of jurisdiction thus raised are of paramount importance. They relate to the nature of judicial administration where the family unit is involved; and they raise fundamental issues as to the respective jurisdictions of the family and the superior courts.
Our immediate concern, however, is not with the family court's claim to an allinclusive jurisdiction over matters affecting the family unit, but with its power to order an equity accounting. That is a question of first impression. In the proceedings before the family court its determination was of such doubt and importance and so affected the merits of the controversy that the certification procedures provided by G.L.1956, § 9-24-27, might have been appropriate. That was the procedure adopted in State v. Zittel, R.I., 180 A.2d 455, where at issue was a possible conflict in the respective jurisdictions of the family and the district courts. That the certification procedure was not availed of here in no way detracts from the significance of the issue raised or from the necessity for securing a prompt resolution thereof.
In our opinion the circumstances here present are so unusual and exceptional that they constitute sufficient warrant for us to exercise our discretion to review this interlocutory decree.
The parties are at issue on the purpose for which the family court may inquire into the business carried on by petitioner and the profits derived by him therefrom. They do not differ on that court's authority to explore fully those questions if the purpose thereof is confined to a consideration of the motion to modify and a consequent determination of whether...
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