RI: Judge puts off same-sex divorce ruling

Link: The Providence Journal

Excerpt:

A judge yesterday said she needs to know more before deciding whether to ask the state Supreme Court if the Superior Court may grant Rhode Island’s first same-sex divorce.

In December, the Supreme Court ruled that Family Court lacked jurisdiction to grant a divorce to two Providence women — Margaret R. Chambers and Cassandra B. Ormiston — who married in Fall River in 2004, shortly after Massachusetts became the first state to issue marriage licenses to same-sex couples.

Now, Chambers wants the high court to determine whether Superior Court, the state’s main trial court, can dissolve the marriage.

During a hearing yesterday, Superior Court Judge Patricia A. Hurst asked both sides to submit legal memos and she scheduled another hearing for June 12. “You have caught me off guard with a one-page motion with no supporting memoranda, no analysis,” Hurst told Chambers’ lawyer, Louis M. Pulner.

But the judge did make some initial comments about Pulner’s motion, which seeks to certify the jurisdictional question to the Supreme Court.

“Superior Court does not have jurisdiction over divorce proceedings, so the question is whether Superior Court has jurisdiction over proceedings that resolve marital rights without calling it a divorce proceeding,” Hurst said. “Does the court have jurisdiction over two people who want to resolve property interests? That happens every day.”

But Pulner said Chambers and Cassandra B. Ormiston already have a Superior Court case over property interests.

What they want is a divorce and he argued that Superior Court does have jurisdiction to grant them a divorce.

Hurst suggested Pulner’s jurisdictional question should be posed to the Superior Court before it’s posed to the Supreme Court. But Pulner said he wanted to avoid “going through the discovery process and wasting the time and assets of the parties” when the Supreme Court is probably going to end up determining the outcome anyway. “I think it’s a question that needs to be answered before the litigation ensues,” he said.

Pulner noted he made a similar argument before Family Court certified a question asking whether it had jurisdiction to grant the divorce. At the time, Pulner said he wanted to avoid having Family Court grant a divorce — only to have the Supreme Court rule, years later in another case, that Family Court lacked jurisdiction.

Pulner now wants to pose this question to the Supreme Court: “May the Superior Court properly recognize, for the purpose of entertaining a divorce petition, the marriage of two persons of the same sex who were purportedly married in another state?”

Hurst said, “I think I’d frame it a bit differently.”

But the question is almost identical to the prior question; the only difference is that the words “Family Court” have been replaced with “Superior Court.” And Pulner said the prior question “was framed in that manner at the direction and specific request of the Supreme Court.”

[...]

But Ormiston said she doubts the couple will be allowed to divorce in Rhode Island. “When I started out, I was optimistic,” she said. “But now I’d be naïve to believe any court — Family Court, Superior Court or the Supreme Court — will recognize my valid marriage contract” for the purpose of granting a divorce.

Ormiston said her request for a divorce should not be viewed as an exception to a rule. “I am not an exception. I am a citizen who is being discriminated against by the courts,” she said. “A bigamist can get divorced. A criminal can get divorced. But this good citizen — who pays her taxes, votes and is a good neighbor — has no access to justice in the courts of Rhode Island.”

[jw]