36 A.2d 661 | R.I. | 1944
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, entitledEllen 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, *50 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,
Originally the scope of the writ was restricted to this purpose, but later, by virtue of article XII, sec. 1 of amendments *51
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,
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 ofcertiorari by this court will illustrate what has been said above. In Parker v. Superior Court,
Again in Bishop v. Superior Court,
Now in Chew v. Superior Court,
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 whichcertiorari 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 *53
here for appellate review the question of jurisdiction. On this view General Motors v. The Shepard Co.,
The ordinary office of an exception is to bring before an appellate court an error committed by an inferior court in the exercise of its jurisdiction. Whether it also brings up a question of jurisdiction which has not been specifically ruled upon by the court below we need not consider at this time, because we are of the opinion that in any event such review would be, in the circumstances of the instant case, of doubtful value, if not actually inadequate. Since petitioner acted as promptly as he could in raising the question of jurisdiction, it would seem to be a hardship to him to throw him back to the doubtful recourse of bringing this question here on his exception.
We think the exercise of a sound discretion in the matter warrants us in granting him a review by certiorari now. And in this connection we think there is persuasive force in what was said in Walker v. Walker,
We are of the opinion that, after denying and dismissing the petition for divorce in the instant case, the superior court had nothing before it to adjudicate. In considering that petition the superior court was, in accordance with the statutes conferring upon it jurisdiction in divorce — G.L. 1938, chap. 496, §§ 6, 25, chap. 416, § 14 — sitting as a court of domestic relations. As such, its jurisdiction was limited by the provisions of those statutes. The fact that G.L. 1938, chap. 528, § 1, expressly prescribes that petitions for divorce "shall follow the course of equity so far as the same is applicable" does not enlarge that jurisdiction. Unless the power, which the court, as a court of domestic relations, seeks to exercise over the subject-matter before it, can be found in the statute, it is without such power.
The power conferred by chap. 416, § 14, is confined solely to divorce proceedings. That section expressly states that the superior court may regulate the custody and support of children "of all persons by it divorced or petitioning for a divorce."
We construe chap. 496, § 6, at least so far as the following portion of it is concerned, namely, "The superior court shall, except as otherwise provided by law, have exclusive original jurisdiction . . . of petitions for divorce, separate maintenance, alimony, and custody of children", as solely confined to divorce proceedings in which the matters of separate maintenance, alimony and the custody of children may and often do become by necessity subjects for the consideration of the court pending the petition for divorce, and also at its conclusion, if the petition for divorce is granted. That such is the construction intended by the legislature seems to be borne out by the following language of § 25 of the same chapter: "The presiding justice of the superior court shall from time to time designate one or *55 more of the justices of said court to hear and determine all petitions for divorce from the bond of marriage and from bed and board, all motions for allowance, alimony, support and custody of children and other matters affecting the parties and their children wherein jurisdiction is acquired by the filing of such petitions for divorce."
This court has held that the dismissal of a petition for divorce strikes down and vacates all interlocutory orders and proceedings which are ancillary to the main case. Ash v. Ash,
In the instant case the attempted action of the superior court appears to have been not interlocutory but final. It attempted to regulate the custody of the child by taking it from the father where it then was and placing it with the *56 mother who had prayed for such custody in her petition for divorce. Since its jurisdiction in divorce ceased upon the denial and dismissal of the petition, the jurisdiction of the court to entertain the prayer for custody, which was dependent upon such petition, necessarily ceased at the same time. We find nothing in our statutes nor in the decisions of this court which tends to support a contrary view. We recognize the fact that the courts outside this state are divided on this question, but we think the better view is that, where divorce is purely statutory and the jurisdiction to exercise the power is deemed a special and limited jurisdiction, as in this state, the denial and dismissal of the petition for divorce exhaust such jurisdiction.
Under this view there is no room for respondent's contention that the decision of the superior court may be rested on its general equity jurisdiction. Assuming, without deciding, that the superior court has power to regulate the custody of children irrespective of its statutory jurisdiction in divorce, it does not follow that it could exercise such power in divorce proceedings when sitting as a court of special and limited jurisdiction.
When this court has exercised the power of the state, asparens patriae, to regulate the custody of a minor child outside of divorce proceedings, it has done so only by habeascorpus. See Hope, Petitioner,
The relief prayed for in the petition for certiorari is granted, and that part of the decision of the superior court awarding Ellen C. White custody of the minor child and an allowance of $10 a week for the child's support is quashed. The records certified here by the superior court are returned *57 to that court with our order, as above set forth, indorsed thereon.
FLYNN, C.J., dissents.