In Rhode Island Divorce and Family Court matters it is often said
that a court speaks through its "Orders". This is truer than most
laypeople might like to believe. However, with the ever growing
caseload in the Rhode Island Family Court system, judges cannot
reasonably be expected to remember every case that is handed to him or
her on the bench. Typically a judge may look at his or her notes and
review the Orders in the case to see what was previously Ordered and
refresh his or her recollection of events that may have already come
before him or her previously.
For a better understanding of how a court proceeding may operate, an
"Order" is typically signed by the judge presiding over the case or
controversy at hand and is usually related to one or more issues in the
case but does not necessarily finalize a case unless the case was a
single issue such as a Motion to Modify Child Support. In that type of
case an Order typically ends the issues and closes the case.
A "Decision", "Final Decree" or "Final Judgment" symbolizes the end
of a case and the Judge's final decision usually in a case that has
been heard on its merits. These documents are essentially, elevated
Orders but they have sufficient finality such that they carry a greater
status and are, generally speaking, subject to review or appeal to a
higher court if a party disagrees with them.
With that said, let's look at Orders once again. An Order instructs
one or more of the parties involved in the case, or the parties'
attorneys, to take a particular action or actions or the Order
otherwise prohibits them from doing certain things related to the case.
Orders may arise in several ways. An Order may be made by a Judge
after oral argument in open court by the parties or their attorneys.
An Order may likewise be made after a hearing on the merits in which
testimony is taken, arguments are made and the court is called upon to
render an Order based upon the evidence presented. Finally, an Order
may be made by the "agreement of the parties" in which the parties
agree to the terms or an Order that may enter either with or without
the assistance of the court.
An Order by Agreement of the Parties is, and should be, of
particular interest to litigants either in a Rhode Island Divorce
Proceeding or in any other family court matter. This Order typically
originates by one of three processes.
First, it may result from an "in chambers conference' or a "bench
conference" with the judge and with counsel for both sides agreeing to
particular provisions or terms of an Order after discussion with the
judge thereby binding their client to the result.
Second, an order may result from a hearing after oral argument
and/or testimony upon the record of the court (that is... taken down by
the court stenographer) with the Judge issuing an order relative to the
matter presented to the court.
Third, an order may result from both parties and/or their attorneys
reaching an agreement as to what terms are acceptable to both of them
and the agreement of the parties is presented in the form of an Order
for the Judge to sign and occasionally for the parties to sign.
If you look back at the orders that are entered by the "agreement of
the parties" either through the parties themselves or after being bound
by their attorneys, those Orders have been referred to in case law as
Now you may be wondering what this means to you, right? While
judge's, and many attorneys might wish to simply treat these orders as
Orders of the Court, meaning . . . . the Judge signed it . . . so you
do it, yet that is not supposed to be true in many cases.
In the case of Waters vs. McGee, 877 A.2d 658 (2003), the
Rhode Island Supreme Court indicated that although the court gives its
"imprimatur" or "seal of approval" to the agreement between the
parties, an Order that is by agreement of the parties and is simply
approved by the court is to be treated as a contract between the
parties and it should be treated as such by the courts.
This is significantly different from much of the court practice
today and both attorneys and laypeople who are faced with issues in
Consent Orders (those Orders by agreement of the parties) should be
aware of the Waters case. It is a case that specifies how
Consent Orders are to be treated and judges, attorneys and laypeople
need to know about it.
One brief example will show you the significance. Mom, Katrina,
enters into an order by agreement with her ex-husband, Glenn that their
oldest child Liza may go and live with Glenn for a period of 3 months
because the daughter, Liza would like to try living with her father.
During the 3 month period however, the relationship between Liza and
her mother degrades to an almost irreparable level and the child is out
of control without any discipline because of Glenn's manipulation of
Liza and his girlfriend twisting things against the mother.
The Mother, Katrina, files a Motion for Return of the Minor Child to
her care as a result of the circumstances and pursuant to the ruling in
Waters vs. Magee. The judge however has ordered counseling and
for reasons unknown to Katrina the judge unilaterally orders the child
to remain with the father without making any findings of fact.
Though in this instance the argument did not prevail, it is likely
that it should have prevailed. The more this argument is used, the
more likely it will be respected in the future by judges based upon the
Rhode Island Supreme Court ruling in Waters v. Magee.
Christopher A. Pearsall, Esquire
PEARSALL LAW ASSOCIATES
571 Pontiac Avenue
Cranston, RI 02910
Phone: (401) 354-2369
Attorney Pearsall's practice is focused almost exclusively in the areas of Divorce and Family law.
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