Segalla v. Segalla

• Decision Date: 01 June 1971
• Docket Number: No. 128-70,128-70
• Citation: 129 Vt. 517,283 A.2d 237
• Parties: Virginia D. SEGALLA v. Remo SEGALLA.
• Court: Vermont Supreme Court

Page 237

283 A.2d 237

129 Vt. 517

Virginia D. SEGALLA v. Remo SEGALLA.

No. 128-70.

Supreme Court of Vermont.

June 1, 1971.

Rehearing Denied Aug. 30, 1971.

O'Neill, Valente & Carroll, Rutland, for plaintiff.

Bloomer & Bloomer, Rutland, for defendant.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

SHANGRAW, Justice.

The libellant-wife was granted a divorce from the libellee-husband on the grounds of intolerable severity. The case was heard September 8, 1970. Findings of fact and a decree was filed by the court on the same day. No claim is made in the libellee's brief that the libellant is not entitled to a divorce. There was also decreed to the libellant certain real estate and personal property. Libellee appears primarily concerned with the distribution of the property as decreed. The libellee has appealed from the findings and decree presenting several issues for our consideration.

Some of the pertinent undisputed facts may help in an understanding of the questions and problems here presented. The parties were married in Springfield, Mass. on the 30th day of May, 1947. They came to Vermont in 1955 and have lived in Addison and Rutland Counties. While in Vermont the libellee has been in business in Rutland, Mendon, Sherburne and Middlebury, Vermont. These several ventures were generally conducted in the name of the husband. His wife spent much of her time handling the business books, and payrolls.

The parties lived and worked together until sometime in February of 1969, at which time the husband's interest in a married woman became evident and the parties separated. At that time the parties were living in their home, owned as tenants by the entirety, and located on the Town Line Road, Rutland, Vermont. This home was worth about $42,000.00 and mortgaged for about $20,400.00.

The libellee left the home sometime in August, 1969 and soon afterwards went to Puerto Rico where he is presently residing. The married woman with whom he was associated followed him to Puerto Rico with her three children.

As a result of this situation, the libellant became ill, very nervous emotionally, lost weight and has been under a doctor's care since the separation in February, 1969. The libellant is afflicted with glaucoma. She is presently employed as a secretary with take-home pay of about forty four dollars weekly, but, as stated in the court's findings, '* * * will probably be unemployed due to the incident of glaucoma becoming worse.'

The divorce petition was personally served on the libellee in Rutland, Vermont on August 26, 1969. On August 29, 1969 a stipulation was entered into by the parties, which, among other things, contained provisions that the libellee pay to the libellant $25.00 weekly by way of her support, together with $30.00 monthly to apply on her medical expense. On September 18, 1969 a temporary order was issued by a superior judge which followed the terms of the stipulation.

On August 21, 1970, the court notified attorneys for the libellee that a hearing on the merits of the petition for divorce would be heard on September 8, 1970. This was confirmed by the Rutland County Clerk's office by letter of August 25, 1970. The time for hearing was set to coincide with the opening day of the 1970 September Term of the Rutland County Court.

On August 31, 1970 the libellee, through his attorneys, applied to a Superior Judge or Chancellor to cause the Rutland County Clerk to issue a commission to a designated person to take the testimony of Remo Segalla, who was without the State of Vermont, and residing in Puerto Rico. On the same date attorneys for the libellee filed a motion to postpone the hearing on the merits of the petition for divorce until such time as the libellee's deposition could be taken in Puerto Rico. The motion contained the statement that the libellee would not be present at the hearing on the merits of the divorce petition scheduled to be heard on September 8, 1970.

The hearing in connection with the application to issue a commission and the motion to postpone the hearing was scheduled for 10:00 o'clock in the morning of September 8, 1970. The hearing was held shortly after the formal opening of the September Term of the Rutland County Court. Each motion was denied and exceptions taken by counsel for the libellee.

A hearing on the merits of the divorce petition immediately followed. Libellee was not present at the hearing nor were any witnesses called on his behalf.

Following is a verbatim statement of the first issue briefed by the libellee.

Was the denial of libellee's application to issue commission to take libellee's testimony without the state, and the motion to postpone hearing on the merits to take said testimony, and a hearing on the merits immediately thereafter, a denial of due process of law, as set forth in the Fourteenth Amendment of the Constitution of the United States?

The foregoing brings to the front the question as to whether or not the court was required to cause the Rutland County Clerk to issue a commission to take the testimony of the libellee for use in the divorce action.

In its application to depositions taken outside the State, 12 V.S.A. section 1249 provides:

Upon the application of a party in a cause pending in county court, a court of chancery or district court, a superior judge, a chancellor or a district judge may cause the respective clerks of such courts to issue a commission * * * to take the testimony of a person residing or being without the state. Notice as the judge or chancellor thinks reasonable shall be given to the adverse party or his attorney.

12 V.S.A. § 1239 provides that depositions may be taken at any reasonable time. This is made applicable to depositions taken outside the state by force of 12 V.S.A. § 1250.

At the outset it is essential to have in mind that no right to take depositions existed at common law. This doctrine has always been strictly construed. In Re Peters' Estate, 116 Vt. 32, 35, 69 A.2d 281; Reed v. Allen, 121 Vt. 202, 206, 153 A.2d 74.

In this jurisdiction we have statutory authority for the taking of depositions. 12 V.S.A. § 1231. This section is patterned after old Rule 26, of the Federal Rules of Civil Procedure. Section 1231, supra, in part provides that 'Any party * * * may take the testimony of any person, including a party, by deposition * * *.'

The use of depositions in this State is governed by 12 V.S.A. § 1234. This statute is substantially based upon Rule 32 of the Federal Rules of Civil Procedure. (former Rule 26).

The portions of 12 V.S.A. § 1234(a)(3) of instant concern read: 'The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: * * * (B) that the witness is at a greater distance than one hundred miles from the place of trial or hearing, or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition * * * (F) upon application and notice that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.'

Libellee asserts in his brief that he was entitled to have his deposition taken prior to the hearing on the merits of the case. In so doing he places emphasis on the above quoted provisions of section 1234(a)(3), more particularly that portion which provides that 'The deposition of a witness, whether or not a party, may be used by any party * * *.'

Neither in argument before the court, nor in his briefs is any claim made that he could not be present at the trial on September 8, 1970. His absence was apparently due merely to the preference to use his deposition rather than to testify orally in court.

Mr. Segalla telephoned the office of his attorneys about August 20, 1970. It was their impression that he was then in Connecticut. He did not give his telephone number and was to call back at three o'clock in the afternoon but failed to do so. His attorneys later contacted him by telephone in Puerto Rico at which time his real estate problems were discussed.

In libellee's motion to postpone the hearing on the merits until such time as his deposition could be taken in Puerto Rico, he therein stated that he had real estate and personal property interests which are complex, some which are jointly owned, some of which are under attachment and other liens, and some of which are mortgaged. By reason of the complexity of his property interests, this, of itself, is an additional reason why his presence in court would have been helpful by affording the court the opportunity to determine his credibility or by questioning him. See In re Bolduc's Estate, 36 Pa.Dist. & Co.R. 131.

On August 21, 1970 libellee's attorneys had notice that the case would be heard on its merits on September 8, 1970. Libellee's application for the issuance of a commission was filed with the court only seven days prior to the scheduled hearing on the petition for a divorce. The record fails to disclose any requested hearing on the application prior to September 8, 1970. By this late request the court may well have considered this as an absence of good faith and a desire to prolong the litigation.

This divorce action is an adversary proceeding. It is fundamental in the construction of statutes to ascertain and give effect to the intention of the Legislature. Davidson v. Davidson, 111 Vt. 24, 27, 9 A.2d 114.

It is our view that the Legislature, by the use of the word 'may' in section 1249, intended that the issuance of a requested commission was discretionary, not mandatory, and that all related matters were to be considered. 23 Am.Jur. 2nd, Deposition and Discovery, section 7 at page 360.

From what we have above set forth, and the facts and circumstances later developed in this opinion, we find no room to hold that the...