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April 2008

Divorce Attorney Christopher Pearsall on Family Court Subpoenas

Presumably a subpoena holds just as much power in the Rhode Island Family Court as it does in the Rhode Island Superior Court.  However after eight (8) years in practice I have learned that there are differences in the power of a subpoena in the Family Court system.

First, however, let me be clear that the difference in the amount of power a subpoena has or may appear to have in any given legal proceeding has nothing to do with the Rhode Island General Laws or the Rhode Island Procedural rules for Superior Court or Domestic Relations matters.

That being said, the power of the subpoena is diminished because of the weight it is given in each of these forums. 

In the Rhode Island Superior Court the superior court judges appear to give more weight and seriousness to subpoenas than those judges in the Rhode Island Family Court System.  By and large the vast majority of subpoenas that I have seen issued in the Rhode Island Superior Court were taken seriously and enforced by the judge presiding over the case.

In Rhode Island Family Court cases, however, subpoenas and subpoenas duces tecum are treated lightly and have readily become the targets of Motions to Quash, despite the fact that the information requested is reasonable, relevant and even necessary to the case of the issuer.

What litigants should perhaps be most aware of is that the Family Court Justice may take little or no action against a party who has been subpoenaed to court to bring documents, particularly banks, financial establishments, and professionals who may be considered experts.

The moral of this article is that the subpoena is often seen by clients as a "sure thing" to get the information they need to prove their case.  In Family Court it most certainly is NOT a sure thing. Keep this in mind if your own attorney is stonewalled either by the court or the opposing counsel.  Even though there are procedural and statutory provisions governing subpoenas and their consequences, your attorney is limited to being your advocate.  Once your attorney advocates for your position regarding the subpoena issued on your behalf, he or she thereafter may remain powerless.

In the end, a subpoena's enforcement falls upon the justice who sits upon the bench.  If the Justice fails or refuses to enforce the subpoena, your attorney is powerless to do anything further other than to protect your interests for appeal.

Authored by:

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.

CALL (401) 354-2369 now to schedule for your low-cost, no obligation legal consultation!

NOTE:  The postings on this website are NOT legal advice, DO NOT create an attorney/client relationship and are NOT a substitute for a detailed consultation with an attorney experienced in the state where you have your legal issue.  This site is based on Rhode Island and is presented for the convenience of the internet public.

* The Rhode Island Supreme Court licenses all lawyers in the general practice of law and has no procedure for recognition of specialty in any area of law.

Copyright 2008 - Christopher A. Pearsall and Pearsall Law Associates (All Rights Reserved.)


Rhode Island Divorce Attorney Christopher Pearsall on "Orders by Agreement"

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 "Consent Orders."

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.

Authored by:

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.

CALL (401) 354-2369 now to schedule for your low-cost, no obligation legal consultation!

NOTE:  The postings on this website are NOT legal advice, DO NOT create an attorney/client relationship and are NOT a substitute for a detailed consultation with an attorney experienced in the state where you have your legal issue.  This site is based on Rhode Island and is presented for the convenience of the internet public.

* The Rhode Island Supreme Court licenses all lawyers in the general practice of law and has no procedure for recognition of specialty in any area of law.

Copyright 2008 - Christopher A. Pearsall and Pearsall Law Associates (All Rights Reserved.)