Zinni v. Zinni

• Court: Rhode Island Supreme Court
• Writing for the Court: POWERS
• Citation: Zinni v. Zinni, 103 R.I. 417, 238 A.2d 373 (R.I. 1968)
• Decision Date: 12 February 1968
• Docket Number: No. 131-A,131-A
• Parties: Fillippa ZINNI v. Domenic ZINNI. ppeal.

Page 373

238 A.2d 373

103 R.I. 417

Fillippa ZINNI v. Domenic ZINNI.

No. 131-Appeal.

Supreme Court of Rhode Island.

Feb. 12, 1968.

Kirshenbaum & Kirshenbaum, Alfred Factor, Providence, for petitioner.

Jacob J. Alprin, Providence, Guardian Ad Litem for Gloria Zinni.

Joseph E. Marran, Jr., Providence, for respondent.

OPINION

POWERS, Justice.

The petitioner wife was awarded an absolute divorce by a decree of the family court entered June 5, 1964. This decree set forth the terms of a property settlement between the parties, an award of $40 a week for the wife's support, and directed that a minor daughter should reside with her father, respondent, until the question of legal custody should be settled-the mother having every right of reasonable visitation in the meantime. At the time this decree was entered, respondent was earning $17,000 annually.

In 1965, however, his earnings increased to $21,000 and on March 9, 1966, his former wife filed the instant petition in the family court to modify the terms of the June 5, 1964 decree. It prayed that custody of the minor daughter be awarded to petitioner; that the order of $40 weekly for her support be increased; and that petitioner be awarded counsel fees. The respondent filed a motion to amend the final decree praying for custody of the minor child and otherwise moved that his former wife's petition be denied and dismissed.

The cause was heard by a family court justice who denied respondent's motion except to the extent that custody was made joint, ordered him to pay a counsel fee of $500, increased the order of $40 a week for petitioner's support to $110 weekly for support of petitioner, and divided custody by leaving the child with respondent except for the period from 5 p.m. on Friday to 7 p.m. on Sunday weekly, when the girl would reside with her mother. Additionally, the daughter was to spend two weeks in the summer with her mother.

A decree containing these orders and the appropriate findings was entered June 1, 1966. On June 9, 1966, respondent filed a claim of appeal and on June 13, 1966, filed his reasons therefor.

The respondent's appeal apparently gave rise to a controversy as to the question of representation for the minor daughter in this court and on June 24, 1966, the family court justice appointed a member of the bar as guardian ad litem. From this order, respondent seasonably filed a claim of appeal and his reasons in support thereof.

Technically, the record thus establishes separate appeals taken by respondent, but in their oral arguments and briefs the parties have combined them as though there were but one appeal. For purposes of simplification, we deem it advisable, in this instance, to consider the appeals in the manner presented by the parties as though consolidation had been previously authorized by us. Such indulgence by us in this instance, however, should not be construed as precedent for the proposition that this court is indifferent to unauthorized departures from approved procedure.

In his reasons of appeal, respondent assigns the usual grounds of error, in support of which he makes five arguments. However, one such ground requires little discussion. It is, that it was unlawful for the family court justice to assume that an improvement in respondent's financial position which came about subsequent to the entry of the decree awarding petitioner $40 weekly for her support justifies increasing that allowance on the theory that petitioner is entitled to share in her former husband's post-marital affluence. His decision, fairly read, rests on findings that a change in petitioner's circumstances had increased her requirements and that respondent had the means to furnish increased support. It is as to these findings that his decision will hereinafter be reviewed.

Still another of respondent's reasons of appeal, and one which requires little discussion at this juncture, is that the decision of the trial justice denying his motion is contrary to the law and the evidence. Save for his prayer that the decree of June 5, 1964, should be modified so as to give him sole custody of the minor daughter of the parties, our decision with regard to his remaining reasons of appeal is such as to be dispositive of his contention that it was error for the trial justice to deny respondent's motion.

We find no merit in his contention that the decision denying him sole custody is contrary to the law and the evidence. It is well settled that when considering cross motions for sole custody of a minor child, the controlling factor is that which is the best interest of the child for the time being. Kelley v. Kelley, 77 R.I. 229, 74 A.2d 452 (1950), and Loebenberg v. Loebenberg, 85 R.I. 115, 127 A.2d 500 (1956).

Here, the trial justice found as a fact that both parents were fit persons to whom, in the interest of their minor daughter, custody might be properly awarded. He reviewed the history of the girl's residence with her father and visits with her mother, and concluded that the child's best interest would be served if he placed her in their joint custody subject to her residing with her mother on weekends and with her father the rest of the week, while responsibility for physical control of the child remained with her father. From our review of the evidence on which the trial justice made his findings we cannot say that his decision is clearly wrong, Loebenberg, supra.

We turn then to a consideration of respondent's contentions relative to his remaining reasons of appeal.

1. The appointment of a guardian ad litem.

It is well settled that whenever in any judicial proceeding it shall be made to appear that there are interests of a minor to be protected, the judicial officer presiding has the inherent power to appoint a guardian ad litem for the protection of the minor's interests. See Keenan v. Flanagan, 50 R.I. 321, 147 A. 617 (1929), and Stanton v. Sullivan, 62 R.I. 154, 4 A.2d 269 (1939). His jurisdiction in this regard, however, must be exercised sub judice to the end that the guardian thus appointed can assist the court in determining the rights of the minor in the tribunal where the guardian is appointed. If a guardian ad litem is so appointed, he then has standing to represent the minor in the appellate court in the event that the interests of the minor are involved in the appeal. In the case at bar the guardian ad litem was not appointed to assist the family court justice in the hearing held by him and he was without jurisdiction to appoint a guardian ad litem to represent the interests of the minor daughter in this court. The appointment on June 24, 1966, of a guardian ad litem was therefore a nullity.

2. Award of counsel fees.

The jurisdiction of a family court justice to award a counsel fee in contained in G.L.1956, § 15-5-16. The extent of this jurisdiction was carfully considered in Gartner v. Gartner, 79 R.I. 399, 406, 89 A.2d 368, 373 (1952), where the court stated, 'We agree with respondent's contentions that the superior court's jurisdiction in divorce is purely statutory and that there is no statute authorizing it to award the wife counsel fees except to enable 'her to prosecute or defend against' a 'petition for divorce or separate maintenance. " See also Harson v. Harson, 82 R.I. 71, 105 A.2d 812 (1954), and Luttge v. Luttge, 98 R.I. 211, 200 A.2d 599 (1964).

The petitoner contends, however, that the counsel fee was awarded to assist her in prosecuting a petition for an increased allowance-necessitated, at least in part, because of expenses which would be incurred as a result of her having been awarded custody of the minor daughter. In support thereof she likewise cites Gartner, supra, wherein it was held that what is now § 15-5-16 authorized an award of counsel fees for the prosecution of a petition brought by the minor child's mother, who had been awarded custody, to secure an increase in an allowance previously awarded for the boy's support....