Sullivan v. Sullivan

• Decision Date: 05 May 1942
• Docket Number: No. 8413.,8413.
• Citation: 26 A.2d 536
• Parties: SULLIVAN v. SULLIVAN.
• Court: Rhode Island Supreme Court

26 A.2d 536

SULLIVAN

v. SULLIVAN.

No. 8413.

Supreme Court of Rhode Island.

May 5, 1942.

Exceptions from Superior Court, Providence and Bristol Counties; Walter Curry, Judge.

Suit for divorce by Antima O. Sullivan against Patrick H. Sullivan. To review a decree for petitioner, respondent brings exceptions.

Exceptions overruled and cause remitted.

John T. Walsh, of Providence, for petitioner.

McKiernan, McElroy & Going, Peter W. McKiernan, and John C. Going, all of Providence, for respondent.

CONDON, Justice.

This is a petition for divorce on the ground of extreme cruelty. The petition also contained a prayer for alimony and the custody by the petitioner of the minor daughter of the parties. The cause was heard on all issues at a single hearing before a justice of the superior court and resulted in a decision granting the petitioner an absolute divorce for extreme cruelty, alimony of $14 per week and the custody of the daughter. To this decision and to a large number of rulings by the trial justice admitting evidence of respondent's drinking habits, drunkenness and matters allegedly not set out in the petitioner's bill of particulars, the respondent duly excepted and has brought his bill of exceptions to this court.

We have examined the transcript with particular reference to all of respondent's exceptions to the admission of evidence and do not deem it cither necessary or desirable to treat any of them separately. They are so clearly lacking in merit that it is inconceivable to us that the evidence thus admitted could have prejudiced respondent. It was within the province of the trial justice, in passing upon the question of respondent's alleged cruelty to the petitioner, to consider respondent's drinking habits in connection with his alleged violent temper.

The real questions in the cause are raised by respondent's exceptions forty-eight and forty-nine to the decision granting the divorce and awarding petitioner alimony and custody of the daughter. Before treating these exceptions, however, we should first consider another matter which was brought to our attention by the petitioner at the hearing before us. She pointed out that there was some question whether this court could review the trial justice's findings on alimony under respondent's exception thereto, since this matter had been determined by the entry of a decree from which no appeal had been taken.

Although petitioner did not move to dismiss respondent's exception or request any other action by this court, we shall consider the point thus informally raised as a suggestion by her of lack of jurisdiction in this court to review by exception the award of alimony by the superior court. Divorce in this state is purely statutory. Sammis v. Medbury, 14 R.I. 214. Exclusive original jurisdiction thereof is vested in the superior court. Only appellate jurisdiction is in this court. Hurvitz v. Hurvitz, 44 R.I. 243, 116 A. 661. Such jurisdiction may be exercised by us only when it has been properly invoked in accordance with the statute. Gen.Laws 1938, c. 495, § 2. The statute in this respect is not as clear as it might be. It does not provide eo nomine for any appeal in divorce or for a bill of exceptions. However, this court has held that it has the power to review, by bill of exceptions, a decision of the superior court granting or denying a petition for divorce. Thrift v. Thrift, 30 R.I. 357, 75 A. 484. In Fidler v. Fidler, 28 R.I. 102, 65 A. 609, 13 Ann.Cas. 835, it had previously held that a final decree in divorce could not be reviewed by appeal. The net result of those decisions has been to make what this court referred to in McLaughlin v. McLaughlin, 44 R.I. 429, 117 A. 649, 650, as "the peculiar nature of practice in divorce", and has given rise to not a few troublesome questions as to the appropriate practice and procedure in divorce in certain special circumstances.

Since the Fidler and Thrift cases a number of cases presenting such special circumstances have been decided by this court, and those decisions have tended to clarify somewhat the apparent confusion arising from our peculiar practice in divorce. Warren v. Warren, 36 R.I. 167, 89 A. 651; Wilford v. Wilford, 38 R.I. 55, 94 A. 685; Phillips v. Phillips, 39 R.I. 92, 97 A. 593; Hurvitz v. Hurvitz, 44 R.I. 243, 116 A. 661; McLaughlin v. McLaughlin, 44 R.I. 429, 117 A. 649; Harvey v. Harvey, 45 R.I. 383, 123 A. 82; Bridges v. Bridges, 46 R.I. 191, 125 A. 281; Smith v. Smith, 50 R.I. 278, 146 A. 626; Boyden v. Boyden, 50 R.I. 326, 147 A. 621, 66 A.L.R. 214; Rosenfeld v. Rosenfeld, 51 R.I. 381, 155 A. 244; Sherman v. Sherman, R.I., 178 A. 462. But only in Bridges v. Bridges, supra, have we found a situation in some respects similar to the instant cause. We shall refer to that case later.

It seems that we have in the instant cause the situation which the author of the opinion in Phillips v. Phillips, supra [31 R.I. 92, 97 A. 595], had in mind when he wrote: "This court has never been called upon to determine what would be the proper appellate proceeding in case the superior court in one decision granted the prayer for divorce and also passed upon a claim for alimony contained in the petition." Here the superior court in its decision has done that very thing, and respondent has duly excepted not only to the decision as to the granting of the divorce but also as to the award of custody and alimony. It is true that he has also assented to the entry of a decree providing for such custody and alimony but only as to form, as he claims, under his exception, that such award of alimony by the superior court was erroneous. This state of the record, it may be admitted, presents an awkward situation, but we think not an insuperable one. It arises largely from the fact that the statute provides that divorce proceedings shall follow "the course of equity," Gen.Laws 1938, c. 528, § 1, while this court has ruled that such a proceeding is nevertheless in the nature of a "civil action" within the meaning of the statute authorizing the taking of exceptions. Gen.Laws 1938, c. 542, § 1; Thrift v. Thrift, supra.

In a number of cases where the superior court, after decision granting the divorce or after final decree, has, in an independent proceeding, entered a decree for custody of children and alimony, an appeal therefrom has been held by this court to be the proper remedy to obtain review here. It was with such cases in mind that we said in Sherman v. Sherman, supra: "It is, however, clearly established that orders and decrees relating to alimony, and to allowances and counsel fees, other than those above referred to, entered by the superior court in divorce litigation, after final decision or decree, are properly reviewable in this court by appeal only and not by bill of exceptions." The cases therein referred to are plainly not like the instant cause. In none of them did the superior court in one decision grant the prayer for divorce and pass upon the question of alimony.

In Thrift v. Thrift, supra, 30 R.I. at page 360, 75 A. at page 486, this court said, referring to review by bill of exceptions: "This method of presenting questions of law for determination, being familiar and...