Opinion
January 4, 1978.
PRESENT: Bevilacqua, C.J., Paolino, Joslin, Kelleher and Doris, JJ.
DIVORCE. Contempt. Counsel Fees. Where, at time wife filed motion to adjudge husband in contempt for failing to make payments required by temporary support order, husband was in default, where husband was current in his payments when family court justice later heard motion, and where family court justice did not find that husband's delay in making original payment resulted from willful disregard for support order or intention to evade his obligations to his child, trial justice erred in awarding wife's counsel fee of $50.
Wife filed motion to adjudge husband in contempt for failing to make payments required by temporary support order. The Family Court, Gallogly, J., refused to find husband in contempt but awarded wife counsel fee of $50, and husband appealed. The Supreme Court held that where trial justice did not find that husband's delay in making original payment was the result of willful disregard for support order or intention to evade his obligations to his child, trial justice erred in awarding wife counsel fees.
Appeal sustained; decree reversed and remanded.
Kirshenbaum Law Offices, Inc., Allen M. Kirshenbaum, for petitioner.
Abedon, Stanzler, Biener, Skolnik and Lipsey, Howard I. Lipsey, Richard A. Boren, for respondent.
This domestic relations matter is before us on an order directing the wife to show cause why we should not sustain the husband's appeal from a Family Court decree awarding her a counsel fee of $50. Tomaselli v. Tomaselli, R.I., 379 A.2d 940-41 (1977).
The award arises out of the wife's motion to adjudge the husband in contempt for failing to make payments required by a temporary support order. Although the husband was in default when that motion was filed, he was current in his payments when a Family Court justice later heard the motion and refused to find him in contempt. In the circumstances, the wife's mere filing of the motion did not entitle her to an award of counsel fees unless a willful disregard for the support order and an intention to evade his obligations to his child occasioned the husband's delay in making the original payments. Harson v. Harson, 82 R.I. 71, 74-75, 105 A.2d 812, 814 (1954). The trial justice did not so find in this case, and it was therefore error to award counsel fees.
As the wife failed to show cause why the decree awarding the wife a counsel fee of $50 should stand, we sustain the husband's appeal, reverse the decree appealed from and remand the case to the Family Court.
Mr. Justice Paolino participated in the decision but retired prior to its announcement.