Meinhold v. Meinhold

379 A.2d 1094, 119 R.I. 460, 1977 R.I. LEXIS 2009
Procedural entryThis page is a short order in Meinhold v. Meinhold. Read the opinion of the Court — 117 R.I. 926
Supreme Court of Rhode Island·Decided November 23, 1977·Published

Opinion

Paolino, J.

This petition for a writ of certiorari was brought by Richard Meinhold, the respondent in this divorce action. He seeks review of a Family Court judge’s refusal to vacate a decree holding him in contempt for failing to comply with several temporary orders. We issued the writ, Meinhold v. Meinhold, 117 R.I. 926 364 A.2d 1297 (1976), and the records were duly certified.

The parties were married on August 7, 1971, in Newport, Rhode Island. The petitioner, Lorraine L. Meinhold, was a domiciled resident of Rhode Island then and she still is. The respondent, an officer in the United States Navy, was sta[462]*462tioned in Newport at the time. He asserts that before being assigned to Newport he had been a domiciliary of Florida and that he never established domicile and residence in Rhode Island. The petitioner refutes this latter claim.

In August 1974, respondent was assigned to San Diego, California. He left Rhode Island for the west coast, returned here once for a 3-week visit with his wife around Christmas 1974 and left again. He has not since entered this state.

In October 1975 petitioner retained counsel in Rhode Island to begin divorce proceedings and to prepare a property settlement agreement. On December 5, however, before petitioner began those proceedings, respondent filed his own suit for divorce in San Diego, California. His wife was served in Newport and she responded by filing this divorce action in Newport County on December 19. She also filed motions for temporary support and other relief and for a restraining order preventing respondent from proceeding with his California action. The restraining order was granted and the entire matter was set down for a hearing.

That hearing was held on January 19, 1976. The respondent, who had been served in California, did not appear either generally or specially nor did any attorney appear on his behalf. The court heard testimony from petitioner and, based on that testimony, rendered a decision. It found that both parties were resident domiciliaries of Rhode Island when they married and that when respondent filed for divorce in California, he had not met the state’s residency requirements for divorce. The court thus stated that respondent was perpetrating a fraud on the California courts and was evading the laws of Rhode Island.

The court further found that petitioner was suffering irreparable harm due to the expense of defending the California suit and due to respondent’s decreasing her monthly military support allotment.

[463]*463The petitioner’s counsel was allowed to prepare an order incorporating these findings, but before that decree was entered, respondent engaged Rhode Island counsel who appeared specially on January 26 to block entry of the prepared decree. The respondent sought to reopen the January 19 hearing to permit him to contest the court’s jurisdiction over his person. The court denied this request and entered its decree on January 29, effective as of January 19.

The decree awarded petitioner support of $687 per month, legal expenses, and use of the marital premises and it also ordered respondent to maintain life insurance and certain military benefits for petitioner and to refrain from alienating their property. The respondent did not comply with several of these orders. Instead, at various times during the following few months he sought unsuccessfully to persuade the Family Court to vacate its decree, to reopen the hearing on the question of his place of residence, and to grant a protective order allowing him to enter the state and testify regarding his residence without being subject to service of process.

During that same time, the Superior Court of California, County of San Diego, heard respondent’s divorce action. According to respondent, petitioner appeared specially in that proceeding through California counsel and contested the jurisdiction of that court over the marriage of the parties. That court found that respondent, as he claimed, had been a resident of Florida before being assigned to Newport, that he had never established residence in Rhode Island, and that on or about January 2, 1975, he had established residence in San Diego County and had continued to maintain that residence. These findings were incorporated in an Interlocutory Judgment of Dissolution of Marriage entered on March 22, 1976, which ordered respondent to pay petitioner $250 support per month for 2 years or until she remarried. A final judgment was entered on June 18, 1976.

[464]*464Despite the California decree, petitioner continued to press her claims in Rhode Island. The Family Court awarded her additional temporary relief and finally, on May 6, adjudged respondent to be in contempt for failing to comply with its decrees. The respondent moved to vacate this contempt decree as well as the original decree entered on January 29. This motion was denied in a decree entered on July 19 and on August 20 respondent filed the instant petition for certiorari.

I

Because of the unusual circumstances disclosed by the petition for certiorari and because of the basic jurisdictional conflict involved here, we concluded that this was a proper case in which to exercise our discretion to issue the writ of certiorari despite our persistent reluctance to review interlocutory orders to permit matters to be brought before us in piecemeal fashion. Gilbert v. Travelers Indem. Co., 117 R.I. 515, 517-518, 368 A.2d 1236, 1237 (1977); Borland v. Dunn, 113 R.I. 337, 340, 321 A.2d 96, 98 (1974); Rogers v. Rogers, 98 R.I. 263, 265-67, 201 A.2d 142 (1964).

The petitioner argues, nevertheless, that certiorari should not be granted here as respondent has an adequate remedy by appeal for reviewing the Family Court’s actions, We do not agree. We have stated in other cases that an appeal will not lie from interlocutory decrees in divorce actions, Berberian v. Berberian, 109 R.I. 273, 284 A.2d 72 (1971), and that the proper vehicle for reviewing such interlocutory decrees is by certiorari. See Berberian v. Berberian, 109 R.I. 603, 288 A.2d 711 (1972)(per curiam). This same rule applies in reviewing the denial of a motion to vacate an interlocutory divorce decree. Baton v. Baton, 109 R.I. 115, 281 A.2d 295 (1971).

The petitioner also argues that certiorari should be denied because of irregularities in the petition and because of respondent’s delay in filing it. We find no merit in these contentions. The respondent has been actively seeking at the [465]*465trial level the same relief he seeks here for basically the same reasons. We thus believe petitioner was fairly apprised of the issues to be considered. Furthermore, the petition was filed 32 days after the denial of respondent’s final motion to vacate, the one which is on review here. We cannot say that the delay in this case is such that it precludes the exercise of our discretion in granting certiorari. Latham v. Department of Educ., 116 R.I.

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Meinhold v. Meinhold, 379 A.2d 1094, 119 R.I. 460, 1977 R.I. LEXIS 2009 (R.I. 1977).

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