White v. White.

• Decision Date: 24 March 1944
• Docket Number: No. 806.,806.
• Citation: 36 A.2d 661
• Parties: WHITE v. WHITE.
• Court: Rhode Island Supreme Court

36 A.2d 661

WHITE

v.WHITE.

No. 806.

Supreme Court of Rhode Island.

March 24, 1944.

Certiorari to Superior Court, Providence and Bristol Counties; Alberic A. Archambault, Judge.

Action for divorce by Ellen C. White against Charles P. White. A divorce was denied, but custody of the parties' child was awarded to Ellen C. White together with an allowance for the child's support, and Charles P. White filed petition for writ of certiorari.

Decision awarding Ellen C. White custody of the minor child and an allowance for the child's support quashed.

FLYNN, C.J., dissenting.

James H. Kiernan and Sidney L. Rabinowitz, both of Providence, for Ellen C. White.

Kirshenbaum & Kirshenbaum, of Providence, for Charles P. White.

CONDON, Justice.

This is a petition for a writ of certiorari to the superior court to send and certify to this court the records relating to its proceedings and decision in divorce No. 40647, entitled Ellen C. White v. Charles P. White, to the end that so much of said records as may be illegal may be quashed. We issued the writ, and in compliance therewith the superior court duly certified and sent up such records.

From those records it appears that, on May 21, 1943, Ellen C. White filed a petition for divorce in which she alleged that her husband Charles P. White had been guilty of extreme cruelty and of gross misbehavior repugnant to the marriage covenant, and she included in her petition a prayer for the custody of their minor child and an allowance for its support. It further appears that, on November 22, 1943, this petition was heard on its merits and was denied and dismissed, but custody of the child was awarded to Ellen C. White, together with an allowance of $10 per week for the child's support. On November 24, 1943, a written decision to this effect was formally entered as of November 22, 1943.

Charles P. White, petitioner here, and so referred to hereinafter, thereupon, on November 24, 1943, applied to this court for certiorari. He contended here that such portion of the superior court's decision, as awarded custody of the child and an allowance for its support, should be quashed as illegal and void, because the superior court was without jurisdiction to make such award after it had denied and dismissed the petition for divorce. In support of this contention, he argued further that the granting of the prayer for custody and allowance, which was an integral part of the petition for divorce, was necessarily dependent upon the granting of that petition. And he contended that the denial and dismissal of the petition therefore exhausted the superior court's statutory jurisdiction in divorce which had been invoked by such petition.

Ellen C. White took direct issue with the above contentions and argued that the superior court clearly had jurisdiction, irrespective of the divorce proceedings, by virtue of its general equity powers over minor children as well as by virtue of the provisions of General Laws 1938, chapter 416, § 14 and chapter 496, § 6. But antecedent to such contention she argued that we should not undertake to review, by certiorari, the superior court's decision, because there is available to the petitioner another and adequate remedy by which that court's assumption of jurisdiction to award custody of the child and an allowance for its support may be reviewed, namely, by bill of exceptions. And, in that connection, she has called our attention to the record which shows that on November 24, 1943, petitioner, respondent below, has already filed, in the superior court, his notice of intention to prosecute such a bill of exceptions.

We shall consider first the last above-mentioned contention. Under our judicial system this court has exclusive jurisdiction to grant the writ of certiorari. Apart from statute, whether or not the writ shall issue is not a matter of right but rests in the discretion of the court. The primary office of the writ is to review the action of an inferior court or tribunal taken without jurisdiction or in excess of the jurisdiction given to it. Cohen v. Superior Court, 39 R.I. 272, 97 A. 794. Such review is not an exercise of the revisory and appellate jurisdiction of this court but of our supervisory jurisdiction over inferior courts and tribunals to keep them within the jurisdiction conferred upon them.

Originally the scope of the writ was restricted to this purpose, but later, by virtue of article XII, sec. 1 of amendments to our State Constitution, the provisions of G.L.1938, chap. 495, § 2, and by a series of decisions of this court construing those constitutional and statutory grants of power, the writ has been employed in the exercise of our revisory and appellate jurisdiction to correct errors committed by inferior courts and tribunals in the exercise of their jurisdiction. Hyde v. Superior Court, 28 R.I. 204, 66 A. 292; Atlantic Mills v. Superior Court, 32 R.I. 285, 79 A. 577; Cohen v. Superior Court, supra; Colitz v. Gilbert, 53 R.I. 319, 166 A. 685; Rose v. Standard Oil Co., 56 R.I. 272, 185 A. 251; State v. Sisson, 58 R.I. 200, 192 A. 209; Brickle v. Quinn, 63 R.I. 120, 7 A.2d 890; In re Estate of James, 64 R.I. 153, 11 A.2d 293.

But in those instances recourse to the writ was allowed either on the ground that there was no other adequate remedy by which the alleged error could be corrected, or on the ground that the furtherance of justice required it in order to avoid great injury or unusual hardship. In thus issuing the writ the court has usually relied upon the plenary power of “final revisory and appellate jurisdiction upon all questions of law and equity” conferred upon it by art. XII of amendments to our State Constitution.

A review of a few of the cases involving the use of certiorari by this court will illustrate what has been said above. In Parker v. Superior Court, 40 R.I. 214, 218, 100 A. 305, this court held that the superior court did not have the power to do what it had done; but it refused to quash the superior court's record, because the defect was merely technical. Actually, because the formal or technical error complained of had caused no substantial injury to the petitioner, the court refused, in its discretion, to exercise its supervisory jurisdiction over the superior court. On the other hand, in Cohen v. Superior Court, supra [39 R.I. 272, 97 A. 796], the writ was dismissed because the petitioner did not show that he came within either of the exceptions to the general rule that certiorari “ordinarily does not lie to correct error in the exercise of jurisdiction.”

Again in Bishop v. Superior Court, 50 R.I. 13, 144 A. 433, both the revisory and appellate and also the supervisory jurisdictions of this court were involved. Petitioner in that case contended that the superior court had no jurisdiction. This court decided that point against the petitioner and then, because the petitioner had a remedy by appeal for any error committed by that court in the exercise of its jurisdiction, it refused to review the superior court's alleged error. In other words, this court, in that case, exercised its supervisory jurisdiction in certiorari, but refused by such writ to exercise its revisory and appellate jurisdiction.

Now in Chew v. Superior Court, 43 R.I. 194, 110 A. 605, we have a situation different from either the Parker or the Bishop case, in this respect, that the question of the superior court's jurisdiction was expressly raised by motion before that court and decided adversely to the petitioner. This court pointed out that petitioner's contention that the superior court's ruling on his motion was erroneous, raised a question of error committed by the superior court in the exercise of its jurisdiction, as every court of general jurisdiction has power to pass upon its own jurisdiction.

Certiorari, therefore, does not lie in any case unless the petitioner can satisfy this court either that there is involved a question of jurisdiction of the inferior court or tribunal, which is raised originally by his petition, or that he has no other adequate remedy, or that review by certiorari is necessary to avoid great injury or unusual hardship which would result from the delay involved in pursuing such other adequate remedy. Finally, the court has always adhered to the rule that the issuance of the writ in any event is discretionary.

The case before us is, in our opinion, one in which certiorari is appropriate, either because it brings here originally the question of the superior court's jurisdiction to make a final order of custody, or because the order is, in effect, merely pendente lite, to which no exception properly lies and therefore petitioner is without an adequate remedy to bring here for appellate review the question of jurisdiction. On this view General Motors Truck Co. v. Shepard Co., 47 R.I. 153, 155, 130 A. 593, and Dunn...