Tarro v. Tarro

• Decision Date: 20 December 1984
• Docket Number: No. 81-636-A,81-636-A
• Citation: 485 A.2d 558
• Parties: Concetta V. TARRO v. Robert D. TARRO. ppeal.
• Court: Rhode Island Supreme Court

Page 558

485 A.2d 558

Concetta V. TARRO v. Robert D. TARRO.

No. 81-636-Appeal.

Supreme Court of Rhode Island.

Dec. 20, 1984.

Howard I. Lipsey, Providence, for plaintiff.

John J. Bevilacqua, Providence, for defendant.

OPINION

MURRAY, Justice.

This case comes before us on appeal from a judgment entered in the Family Court awarding a divorce to the husband on the ground of irreconcilable differences. Cross-appeals have been filed by both the wife and the husband in this action. The wife appeals from the denial of her petition for an absolute divorce on the grounds of adultery, extreme cruelty, and gross misbehavior, and the Family Court's granting of the husband's petition on the ground of irreconcilable differences. She also contests the assignment of marital property, the amount of alimony and child-support awarded, and a setoff against the amount of support arrearages due from the husband. The husband appeals from the award of counsel fees to the wife. We concur with the Family Court justice's findings of fact and affirm the judgment below.

The facts pertinent to this appeal are as follows. Robert D. Tarro (husband) and Concetta V. Tarro (wife) were married on July 11, 1960, and are the parents of six children, four of whom are still minors residing (upon grant of custody in October of 1978) with their mother. The parties separated in May of 1977 after nearly seventeen years of marriage. On November 30, 1977, the wife filed a petition for a divorce on the grounds that the husband had committed adultery and was guilty of gross misbehavior and extreme cruelty. On December 29, 1977, a cross-petition for divorce was filed by the husband on the ground of irreconcilable differences leading to the irremediable breakdown of the marriage.

The wife, upon temporary order, was granted custody of the five (currently four) minor children and was awarded exclusive use of the marital domicile on October 5 1978. ¹ The husband, a physician specializing in otolaryngology (ear, nose, and throat), was ordered to pay $27,500 annually for the wife and children's support ² in addition to various other expenses. ³ In December of 1978 the husband was adjudged to be in contempt of court for failing to make the required support payments. Although the wife moved again in October of 1980 to have the husband adjudged in contempt, the judge did not see fit to grant the second motion. On October 27, 1980, the husband moved to have the wife adjudged in contempt for refusing to permit him reasonable visitation privileges and for unilaterally withdrawing $12,000 from the joint account. ⁴ The judge did not grant the husband's motion.

At trial, which commenced on June 18, 1979, and concluded on March 30, 1981, the wife's petition for divorce was denied and the husband's counterpetition on the ground of irreconcilable differences was granted. In working out an equitable distribution of the marital assets, the judge assigned a little more than one-half of the total marital assets, which were valued at $215,281, to the wife. Support payments were set at $300 per week for the children and $150 per week for the wife, the latter to be given for a three-year period only, as a rehabilitative device. Custody of the minor children was awarded to the wife along with the marital domicile, an automobile, and the household furnishings. Medical and dental insurance payments were to be made by the husband for the children and, for a three-year period, for the wife.

The husband was adjudged in contempt for failure to comply with his support obligations and was ordered to pay $17,596.08 in order to rectify the situation. The wife was found to have used the $12,000 from the joint bank account for the children's expenses. Since this bank account had been assigned to the husband as part of the equitable distribution, the judge directed that the $12,000 be setoff against the $17,596.08 support arrearages owed by the husband. In addition, the husband was ordered to pay $12,000 for counsel and witness fees to the wife's attorney.

The decision was filed on November 6, 1981, and both parties filed notices of appeal--the husband on November 23, 1981, and the wife on November 24, 1981.

Three issues are presented to us on appeal. The first issue is whether the trial justice erred in denying the wife's petition for divorce on the grounds of adultery and in granting the husband's cross-petition on the grounds of irreconcilable differences. The second issue is whether the trial justice erred in assigning the marital assets, in awarding alimony, and in permitting a setoff of $12,000 against the support-payment arrearages due. The third issue is whether the trial justice erred in ordering the husband to pay the wife's counsel and witness fees.

The appropriate standard of review in the instant domestic-relations situation is that this court will not disturb the trial justice's findings where he or she has scrupulously considered all of the elements set forth in G.L. 1956 (1981 Reenactment) § 15-5-16.1. Cok v. Cok, R.I., 479 A.2d 1184, 1189 (1984). We conclude that the trial justice took the alleged adulterous conduct of the husband into account in arriving at his decision that both parties were responsible for the deterioration of the marriage, in assigning the marital property, and in awarding support payments.

We shall consider the first two issues simultaneously since the statutes that deal with the assignment of property and support payments specifically enumerate "conduct" as a factor to be considered by the court in making its awards. ⁵

At the outset, it is important to bear in mind that the term "conduct" as construed by this court has not been equated with the traditional notion of "fault." Rather, "fault" was used synonymously with charges of adultery and misbehavior, and traditionally it was the wife seeking affirmative relief in the form of support from her husband, who bore the brunt of these charges. See cases cited in Pulawski v. Pulawski, R.I., 463 A.2d 151, 156-57 (1983). Prior to 1979 the wife's right to alimony was forfeited in the event that she was found guilty of misconduct (adultery), yet no comparable civil sanction was imposed on an adulterous husband. Fisk v. Fisk, R.I., 477 A.2d 956, 958 (1984). Today, however, Rhode Island is following the modern trend in adhering to the concept of alimony as a rehabilitative tool based upon need. Id. This change is likewise reflected in the modified domestic-relations laws. ⁶ Lancellotti v. Lancellotti, R.I., 481 A.2d 7, 9-10 (1984). As a result, "fault" as such has been largely eliminated as a factor in Rhode Island divorce proceedings and has been replaced by a system of no-fault divorce (in § 15-5-3.1) and by a "fault"-oriented system utilizing the term "conduct" (in § 15-5-16 and § 15-5-16.1), which as stated above is not to be equated with the traditional notion of fault.

In fact, this court has held that a trial justice who denies alimony on the basis of conduct alone has misconceived the nature of conduct under § 15-5-16. Fisk v. Fisk, 477 A.2d at 958. "Conduct" is not limited to bad conduct or marital fault but also encompasses good conduct during the term of the marriage. Id. Furthermore, a single statutory factor should not control a trial justice's decision. Id. Rather, the justice must consider all of the enumerated criteria when awarding spousal support and distributing marital property. Whited v. Whited, R.I., 478 A.2d 567, 569-70 (1984). ⁷

Upon reviewing the trial justice's findings of fact, we find it clear that he adhered to the requisite duty articulated in Cok above by scrupulously considering all of the elements set forth in §§ 15-5-16 and 15-5-16.1. There is not a single statutory element that the trial judge failed to consider; his decision was arrived at only after a thorough and careful analysis of the instant factual situation. Certainly the conduct of both parties, including the alleged misconduct of the husband, was seriously considered by the judge prior to his awarding the husband's cross-petition for divorce on the ground of irreconcilable differences. However, the trial judge reached the conclusion that both parties contributed to the deterioration of the marriage. With this conclusion we agree.

However, the wife claims that her husband's refusal to answer questions about an alleged adulterous relationship, by asserting his Fifth Amendment privilege against self-incrimination, should have resulted in the trial justice's drawing an adverse inference against the husband and subsequent denial of his cross-petition for divorce on the ground of irreconcilable differences. She bases this contention on our decision in Pulawski ⁸ where we acknowledged that the imposition of sanctions upon a party who seeks affirmative relief and the drawing of adverse inferences against such a party when he refuses to answer relevant questions on self-incrimination grounds are widely accepted in both state and federal courts. See cases cited in Pulawski v. Pulawski, 463 A.2d at 156. We further expressed our opinion that this right is grounded in article I, section 13, of the Rhode Island Constitution. Id. 463 A.2d at 157. In that decision we held that "[a]lthough a default judgment should not be granted against a defendant purely by reason of his assertion of his privilege against self-incrimination, such refusal may be taken into account in the process of evaluating the evidence presented by a plaintiff or other moving party." Id. The wife here argues by way of analogy that a negative inference should have been drawn against the husband as a result of his refusal, as well as that of his alleged lover, to answer questions regarding an alleged adulterous affair.

Upon reviewing the evidence, we find that the trial justice in the instant case, unlike the trial justice in Pulawski, did give the requisite "significant weight" to the husband's refusal to answer certain questions regarding an...