Summary
In DiNofrio v. DiNofrio, 85 R.I. 21, a superior court justice awarded a counsel fee to the wife in order that she might defend against the prosecution of a bill of exceptions by her spouse, and this court held that the award was authorized by the provisions of what is now G.L. 1956, § 15-5-16, the same provision on which was based the award in the instant case.
Summary of this case from Sulyma v. SulymaOpinion
August 30, 1956.
PRESENT: Flynn, C.J., Condon, Roberts, Andrews and Paolino, JJ.
1. DIVORCE. Review. Motions Filed After Decision on Merits. The correct procedure for bringing to supreme court for review decrees entered on motions filed after decision on the merits of a divorce petition is by appeal and not by a bill of exceptions.
2. DIVORCE. Review. Counsel Fees. Where petitioning wife was granted divorce on ground of extreme cruelty and cross petition was denied and dismissed, Held, that award of counsel fee to petitioner by superior court was proper under statute in order to enable wife to defend against bill of exceptions prosecuted by respondent. G.L. 1938, c. 416, § 14.
3. DIVORCE. Review. Counsel Fees. Basis for Award. Discretion of Trial Justice. Where there was evidence upon which trial justice could exercise his discretion and award counsel fee of $110 to petitioning wife for the purpose of enabling her to defend against bill of exceptions prosecuted by respondent husband, Held, the award would not be disturbed even though the undisputed evidence was meager, since court could not say the evidence was so lacking in probative force that the award amounted to an abuse of discretion. Held, further, that in such cases the wife must show that husband is able to pay the counsel fee sought and that she is without means to do so. G.L. 1938, c. 416, § 14.
4. DIVORCE. Final Decree. Motion for Counsel Fee. Alimony. Decision after Trial on Merits. On motion for counsel fee to defend against bill of exceptions filed following decision granting divorce, superior court entered a decree awarding petitioner $110 and, when respondent failed to pay the fee and alimony as ordered, decreed him in contempt. He appealed from both decrees. Held, that appeal, which was the proper remedy after decision on the petition for divorce, suspended the operation of the decrees pending final determination thereof, hence superior court was in error as to the contempt decree but, since there was no error in the award of a counsel fee on the motion therefor, an order for repayment of the fee which respondent had paid following the contempt decree could not be made.
5. DIVORCE. Cruelty. Acts Other Than Physical Cruelty. Rule to be Applied. Evidence of acts of physical violence or threats of the same is not indispensable to the proof of a charge of extreme cruelty, since a course of conduct that is totally devoid of physical violence or threats of the same, but which has the effect of impairing the health of the injured party, will warrant the granting of divorce on that ground. G.L. 1938, c. 416, § 14.
6. TRIAL. Conduct of Trial Justice. Prejudice. Impatience. Although trial justice exhibited impatience with respondent, Held, that court could not say his unusual conduct was of such a nature and gravity as to render the trial clearly unfair to respondent.
7. DIVORCE. Alimony. Amount. Where superior court awarded alimony in the amount of $25 per week, but there was no evidence in the record to sustain such an award, the petitioner herself having testified that she required only $20 per week for her support, Held, that award would be cut to $20 per week.
DIVORCE petition filed by wife on the grounds of extreme cruelty and neglect to provide. The husband filed a cross petition on the grounds of extreme cruelty, gross misbehavior, and willful desertion. The trial justice granted the petition after hearing, awarded petitioner $25 per week alimony, and denied and dismissed the cross petition. Respondent excepted and filed a bill of exceptions. Petitioner filed a motion in superior court asking for a counsel fee. A decree was entered awarding her $110 and respondent appealed and declined to pay the fee or the alimony. On motion to adjudge in contempt, the respondent was decreed in contempt. From this decree he appealed and also prosecuted a bill of exceptions thereto. Appeal from the decree awarding counsel fee denied and dismissed, and decree appealed from affirmed. Appeal from decree of contempt reversed, and superior court directed to enter a new decree denying and dismissing the petitioner's motion. Respondent's exception to decision sustained in part, i.e., only as to allowance of $25 per week alimony, otherwise overruled. All other exceptions overruled, and cause remanded to superior court with direction to enter a new decree in accordance with opinion, including an award to petitioner of $20 per week alimony, and for further proceedings.
Charles A. Kelley, Paul E. Kelley, for petitioner.
Paul Motta, Alfred E. Motta, for respondent.
This is a wife's petition for divorce on the grounds of extreme cruelty and neglect to provide. The husband filed an answer thereto in the nature of a cross petition for divorce on the grounds of extreme cruelty, gross misbehavior repugnant to and in violation of the marriage covenant, and willful desertion. After a hearing on the merits in the superior court, the trial justice granted the petition on the ground of extreme cruelty, awarded the petitioner alimony of $25 per week, and denied and dismissed the cross petition. The respondent excepted to such decision and has brought the cause here by his bill of exceptions containing that exception and several others taken to rulings during the trial. He thereupon refused to pay alimony.
After the decision and after respondent had filed his notice of intention to prosecute a bill of exceptions thereto, petitioner filed a motion in the superior court praying that respondent be ordered to pay her a suitable counsel fee to enable her to defend respondent's bill of exceptions in this court. After a hearing thereon the trial justice entered a decree awarding her a counsel fee of $110. From that decree respondent filed an appeal to this court and also prosecuted a bill of exceptions.
Upon the filing of such appeal the respondent also declined to comply with that decree. The petitioner thereupon moved to adjudge him in contempt for failure to pay her alimony and also counsel fees. The trial justice granted the motion as to the counsel fees, adjudged respondent in contempt and allowed him until April 15, 1955 to purge himself thereof. A decree to that effect was duly entered and from such decree respondent has appealed to this court. He has also prosecuted a bill of exceptions thereto.
We shall dispose of the questions raised by those two motions before considering the exceptions to the trial justice's decision on the merits. In the first place the correct procedure for bringing to this court for review decrees entered on motions filed after a decision on the merits of a divorce petition is by appeal and not by a bill of exceptions. Harvey v. Harvey, 45 R.I. 383. We shall consider only the appeals from the decrees granting such motions. The bills of exceptions as to such motions are dismissed.
The respondent contends that the decree granting the motion for counsel fees to enable petitioner to defend on review in this court the decision on the merits is against the law and the evidence and the weight thereof. As to the law, he argues that general laws 1938, chapter 416, § 14, is the sole authority for the superior court awarding counsel fees to a wife in a divorce case; that in Gartner v. Gartner, 79 R.I. 410, this court has decided such section does not comprehend proceedings on appeal; and that in any event this section sets up two conditions that the moving party must meet before she may be granted an award. The first is that she must show the husband has a sufficient estate out of which such fees may be paid, and secondly, that she is without property of her own available for the purpose.
The respondent misconstrues the Gartner case. In that case we pointed out that the wife was "neither prosecuting nor defending against a petition for divorce or separate maintenance." And we cited Cornell v. Cornell, 53 R.I. 352, to show that if she were doing either of these an award of counsel fees would be proper. In the case at bar petitioner is still engaged in prosecuting her petition for divorce and defending against respondent's cross petition as a result of his prosecution of a bill of exceptions in this court. The trial justice, therefore, did not err in so considering her status under § 14.
The next question is whether or not she showed by sufficient credible evidence that respondent was able to pay the counsel fees sought and that she was without means to do so. Such conditions must be satisfied before the trial justice is warranted in making an award. However, the section vests the decision of these matters in the discretion of the trial justice and unless such discretion is abused this court will not disturb his decision. There is evidence here upon which the trial justice could have relied to exercise his discretion. Although such evidence is meager, it is not disputed and we cannot say that it is so utterly lacking in probative force that it amounted to an abuse of discretion for the trial justice to base an award of a counsel fee of $110 upon it. Hence we affirm the decree.
In view of that conclusion it seems unnecessary to consider respondent's appeal from the decree adjudging him in contempt for failure to pay the fee as ordered. However, it appears that the trial justice compelled him to purge himself by complying with the decree, notwithstanding his claim of appeal. He ruled that the appeal did not suspend the decree, because such decree was interlocutory and there was no appeal from it. This was error. The decree was not interlocutory. It was a final disposition of an independent matter which arose after the case on the merits had been concluded and was therefore subject to review by appeal. An appeal having been duly taken, the effect thereof was to suspend the operation of the decree pending final determination of the appeal in this court. And the same is true of the decree adjudging respondent in contempt. His appeal therefrom suspended that decree and he should not have been compelled to purge himself while such appeal was pending. Hence we must reverse the decree entered on that motion, but since we have already ruled that there was no error in the award of counsel fees on the motion therefor an order for repayment of such fees to respondent cannot be made.
This brings us to the consideration of respondent's exception to the decision on the merits of the petition and the cross petition and his exceptions to the rulings therein. We have examined the three exceptions to the admission or exclusion of certain testimony and we are of the opinion they are without merit and need not be discussed at length. In our opinion, regardless of what might have been the effect of the rulings if the trial justice were hearing the case with a jury, no prejudice to respondent resulted where as here the trial justice himself was the trier of the facts.
Under his other exceptions respondent has briefed and argued three contentions. The first is that the decision is clearly wrong because respondent's conduct does not constitute extreme cruelty. This court has declined to define extreme cruelty but it has held that such cruelty is not confined to acts of physical violence or threats of the same. Bastien v. Bastien, 57 R.I. 176. Evidence of such acts is not indispensable to the proof of a charge of extreme cruelty. A course of conduct that is totally devoid of physical violence or threats of the same but which has the effect of impairing the health of the injured party will warrant the granting of a divorce on that ground. Grant v. Grant, 44 R.I. 169. Thus extreme cruelty may be proved by evidence of such conduct or by physical acts of a sufficient degree of violence.
In the case at bar petitioner testified to a series of acts of physical violence by respondent which for the most part he denied but which the trial justice expressly found to be true. He also found that respondent and his witnesses, who testified to incidents of questionable conduct by petitioner, were unworthy of belief. He further found that petitioner was a faithful wife who had performed all the obligations of the marriage covenant.
The respondent argues under his second contention that those findings were clearly wrong. On our view of the evidence in this respect we cannot say the trial justice was clearly wrong. In our opinion there is no merit in this contention. It appears from the evidence that on a number of occasions respondent committed acts of violence toward petitioner which indicated a cruel disposition and amounted to a course of conduct that put her in physical fear of him. Since the trial justice had the advantage of seeing respondent on the witness stand he had a better opportunity than we have from the record to evaluate such acts and determine whether in the aggregate they furnished a reasonable basis for concluding that they amounted to extreme cruelty. In any event we cannot say from the record that they were of such minor consequence as to justify us in holding that his decision was clearly wrong. And we are of a like opinion with reference to his findings as to the lack of credibility of respondent and his witnesses.
The respondent's third contention is that the trial justice misconceived the evidence and was not fair and impartial in his conduct of the trial. He argues that such denial of a fair trial was due to the trial justice's misunderstanding of respondent's personality. The respondent claims that he was not well but was sick and was tired while testifying; that as a result his responses to questions were not as clear and incisive as they should have been; and that he wandered in his speech and at times had trouble putting his thoughts into proper words. He further claims that because the trial justice did not understand his, respondent's, condition he took a position against him very early in the trial and continued to manifest this biased attitude to the end. The respondent cites fifty-six incidents during the trial to support the contention that the trial justice, allegedly without good reason, became impatient with him, interrupted his testimony, interfered with his counsel's presentation of his case, and otherwise exerted an influence on the development of the evidence that was patently adverse to respondent and unfair.
These are serious charges. If they could be established as having the effect which respondent so emphatically asserts, they would unquestionably disqualify the trial justice because of a preconceived prejudice against respondent. However, after carefully considering the numerous incidents relied upon we are of the opinion that they fail to establish any such disqualifying prejudice. We shall not relate the incidents here but suffice it to say they are mostly manifestations of impatience at the tendency of respondent repeatedly to fail to respond to simple questions propounded to him and to go off on long recitals of inconsequential matters after the trial justice had cautioned him to confine his answers to the matter involved in the question. Later, as the trial progressed, the trial justice apparently became convinced that respondent and his witnesses were not telling the truth and he showed it at times by the manner in which he interfered in their direct and cross-examination.
Perhaps it would have given the unsuccessful party less reason to question the decision on the score of partiality and prejudice, if the trial justice had restrained his impatience, even though sorely provoked, and especially if he had refrained from interfering on his own volition with the examination of respondent. But while conduct of that nature may be subject to criticism it does not of itself necessarily result in an unfair trial. In this instance we cannot say that the trial justice's unusual conduct was of such a nature and gravity as to render the trial clearly unfair to respondent.
However, in our opinion the trial justice clearly erred in one respect. There is no evidence in the record to warrant an award of alimony of $25 a week. The petitioner herself testified that she required only $20 a week for her support. Evidence of a need for any greater amount is wholly absent. An award must be based on some evidence. The award here should, therefore, be limited to $20 a week. To that extent the respondent's exception to the decision is sustained.
The respondent's appeal from the decree granting the petitioner $110 for a counsel fee is denied and dismissed, and the decree appealed from is affirmed.
His appeal from the decree adjudging him in contempt is sustained, the decree appealed from is reversed, and the superior court is directed to enter a new decree denying and dismissing the petitioner's motion.
The respondent's exception to the decision is sustained in part, that is, only as to the allowance of $25 per week alimony, and it is otherwise overruled. All of his other exceptions are overruled, and the cause is remanded to the superior court with direction to enter a new decree in accordance with this opinion including an award to the petitioner of $20 per week alimony, and for further proceedings.