Sundlun v. Sundlun

• Citation: 234 A.2d 358,103 R.I. 25
• Decision Date: 27 October 1967
• Docket Number: No. 93,93
• Parties: Marjorie G. SUNDLUN v. Walter I. SUNDLUN. Appeal.
• Court: United States State Supreme Court of Rhode Island

Page 358

234 A.2d 358

103 R.I. 25

Marjorie G. SUNDLUN v. Walter I. SUNDLUN.

No. 93 Appeal.

Supreme Court of Rhode Island.

Oct. 27, 1967.

John P. Bourcier, Providence, for petitioner

Baker & Sundlun, Providence, John F. McBurney, Pawtucket, for respondent.

OPINION

PAOLINO, Justice.

This cause was heard before a justice of the family court on the wife's amended petition for divorce from bed and board on the ground of extreme cruelty, and on the husband's amended cross petition for absolute divorce on the grounds of extreme cruelty and willful desertion. After a hearing on the merits, a decree was entered denying and dismissing the wife's petition and granting the husband's petition on the ground of extreme cruelty. The petitioner has filed an appeal from that decree, as well as from certain other decrees which were entered during the pendency of this cause in the family court. Additionally, the cause is here on the respondent's appeal from an order of the family court pertaining to support payments.

A brief discussion of the travel of this case will be helpful in understanding the issues raised by these appeals. On September 9, 1964, petitioner filed in the family court a petition for absolute divorce and a motion for temporary allowance and counsel and witness fees. On October 1, 1964, respondent filed a cross petition praying for an absolute divorce on the grounds of extreme cruelty and willful desertion.

After a hearing on the motion for temporary allowance, a decree was entered on October 22, 1964, awarding petitioner the sum of $100 per week for her support and maintenance until further order of the court. The decree provided that the question of counsel and witness fees was to be left open for further consideration with the right of both parties to introduce evidence with respect thereto.

It appears from the record that no further court proceedings took place until October 8, 1965, when petitioner's motion to amend her petition from one for absolute to bed and board divorce was granted by the family court. Thereafter, on October 22, 1965, respondent filed an amended cross petition for absolute divorce on the same grounds set forth in his prior cross petition. The case was heard on the merits on various days during the period commencing on February 28, 1966, and ending on April 20, 1966. The trial justice filed a decision on July 20, 1966, sustaining respondent's cross petition, and on July 28, 1966, a decree was entered denying and dismissing the wife's petition and granting the husband's cross petition on the ground of extreme cruelty. As we have previously stated, petitioner appealed from that decree.

On August 2, 1966, while the appeal was pending, respondent filed a motion to modify the decree entered on October 22, 1964, ordering him to pay petitioner weekly support. He based this motion on the ground that there was a material change in his circumstances and also on the ground that petitioner was not without means. On October 13, 1966, this motion was amended and, as amended, moved that the decree in question be modified and/or vacated.

On October 18, 1966, while the above motion was pending, a decree was entered, upon an oral motion made in the family court by petitioner, ordering respondent to pay to petitioner all weekly unpaid payments which became due under the October 22, 1964 decree. The respondent has filed an appeal from this decree.

On November 10, 1966, petitioner filed a motion requesting counsel fees for legal expenses incurred in defending the various motions filed by respondent subsequent to the entry of 'Final Decree.'

After completing the hearings on respondent's amended motion to modify and/or vacate and on petitioner's November 10, 1966 motion for counsel fees, the trial justice filed a written decision on February 21, 1967, in which he discussed the issues raised by both motions. Thereafter, on February 24, 1967, two decrees were entered, one denying petitioner's motion for counsel fees and the other vacating the October 22, 1964 decree. Each decree was based on the trial justice's decision. The petitioner has filed an appeal from each decree.

The parties have briefed and argued their opposing contentions under eight main points. For convenience we shall treat them in like manner.

Under point 1 petitioner argues that the family court lacked jurisdiction because of invalid service of the petition. She conceded in the oral argument before this court that the family court had jurisdiction of the subject matter of this cause, but she contends that the family court lacked jurisdiction of the person because the citation was not served on respondent in accordance with the Rules of Practice and Orders of the Family Court.

It appears from the record that after the petition was filed in the family court, a citation issued in accordance with rule 43 3.b. The citation was directed 'To the Sheriffs of our several counties, or to their Deputies.' Rule 43 9. provides, in pertinent part, that:

'Service of citations shall be made by leaving a certified copy thereof in the hands and possession of the Respondent, or by leaving a certified copy thereof at his usual place of abode with some person living there.'

The entry on the citation does not indicate that it was served by a sheriff or deputy. It appears therefrom that respondent accepted service thereof. The following entry appears on the reverse side of the citation over the signature of respondent: 'Due and lawful service of the within Citation is hereby acknowledged this 10th day of September, 1964.' The entry on the citation also indicates that it was returned and filed in the office of the clerk of the family court on October 9, 1964.

The petitioner contends that the failure to comply with the rules of the family court with respect to the method of service of the citation deprived the family court of jurisdiction of respondent. Stated another way, petitioner argues that acceptance of service of the citation by respondent, absent statutory authority to do so, was a nullity and did not confer jurisdiction of respondent on the family court.

The petitioner concedes that this question was not raised in the family court. Assuming, however, that the question is properly before us and that petitioner has standing to raise this issue, we hold that there is no merit in her instant contention.

It is well-established practice in this state that an acknowledgment of service on the citation or the general appearance of a defendant is equivalent to service. As the court said in Hawkins v. Boyden, 25 R.I. 181, 183, 55 A. 324, 325.

'* * * Acknowledgment of service is submission to the jurisdiction of the court, and as effective as the service of process by an officer, unless otherwise prescribed by statute. In most States there is statutory provision. In this State we have no statute upon the subject, except as to nonresidents. Gen.Laws 1896, c. (cap.) 240, § 20. It has, however, been the uniform practice of the court to recognize due service and jurisdiction by an acknowledgment thereof, or even by an appearance without objection. * * *' See also Doyle v. Roy, 54 R.I. 98, 99, 170 A. 91, 92, where the court said:

'* * * By accepting, through his attorney, service of the writ, pleading to the declaration, and going to trial on the merits of the case, he has submitted to the jurisdiction of the court and cannot evade its judgment on the ground that he was not found and served with process in Providence county.'

And in Gorman v. Stillman, 25 R.I. 55, 58, 54 A. 934, 936, the court stated:

'That jurisdiction of the person is obtained by his voluntary appearance, either in person or by attorney, there can be no doubt. * * * And, having once appeared generally, we understand the ordinary rule to be that objection cannot subsequently be raised to the jurisdiction as to the person of the party thus appearing. * * *'

See also Industrial Trust Co. v. Rabinowitz, 65 R.I. 20, 22, 13 A.2d 259, 260, 129 A.L.R. 1236, and Mack Construction Co. v. Quonset Real Estate Corp., 84 R.I. 190, 194, 122 A.2d 163, 164, where the court discusses the effect and consequences of a general appearance.

We conclude our discussion of this issue with the words of Chief Justice Ames in Cooke v. Second Universalist Society, 7 R.I. 17, 18, where he succinctly stated the rule as follows:

'It would certainly be inconsistent with the general rules of practice, that the defendants, after appearing in this case, pleading to its merits and submitting them to a jury in the court below, should, upon the plaintiff's appeal to this court, be permitted to dismiss the appeal upon the ground that the original writ of summons was not properly served upon them. The sole purpose of the writ is to bring the defendants before the court, and when they have come in, there is an end of it; since they might have come in upon the writ, without any service of it whatever. * * *'

In view of our own decisions on this question we need not discuss the cases which petitioner cites from other jurisdictions.

We shall consider petitioner's contentions under points 2 and 3 together. Under point 2 she argues that the findings on which the trial justice based his decision on the merits are clearly wrong and that he misconceived and overlooked material evidence in arriving at his decision. Under point 3 she contends that the trial justice erred in finding that respondent was without fault.

The transcript is replete with conflicting evidence on material issues. Each party presented evidence which, if believed, would suport findings of extreme cruelty and freedom from fault. The evidence presented by petitioner is such that, if believed, would support a finding of freedom from fault on her part and a finding that respondent was guilty of extreme cruelty. On the other hand, the evidence presented by respondent, if believed, would support a finding that he was without fault and that petitioner was...