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Attorney(S)

Kirshenbaum Kirshenbaum, Knauer Knauer, for complainant. Haslam, Arnold Sumpter, Stephen F. Mullen for respondents.

Judges

CAPOTOSTO, J.

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Smart Summary

Bogdanovich v. Bogdanovich — Supreme Court of Rhode Island (Aug. 2, 1950)

Factual and Procedural Background

This is a bill in equity filed by Kirill Bogdanovich seeking an accounting and incidental relief concerning a small grocery and meat store located on Chalkstone Avenue in Providence. Kirill married Josephine (a widow with four children) in 1925. Since about 1930 the Bogdanovich family lived in rooms connected with the store, which Kirill and Josephine operated.

The bill alleged (1) that the complainant was the real owner of the store when the equity proceedings were commenced and (2) that two bank accounts standing in the joint names of Josephine and one of her children, Walter Chmilewski, represented improper withdrawals of store money.

Following a hearing on the bill, answer and proof, the trial justice denied and dismissed the bill on the ground that the complainant had failed to establish his case by a fair preponderance of the evidence. The complainant appealed. The Supreme Court of Rhode Island denied and dismissed the appeal, affirmed the decree appealed from, and remanded the cause to the superior court for further proceedings.

Legal Issues Presented

Whether the complainant (Kirill Bogdanovich) was the real owner of the store when the proceedings were commenced.
Whether two bank accounts in the joint names of Josephine Bogdanovich and Walter Chmilewski represented, in whole or in part, improper withdrawals of store money.

Arguments of the Parties

Complainant's Arguments / Testimony

Complainant testified he presently is and always has been the real owner of the store despite having executed, in 1935 and without his wife's knowledge, a bill of sale of the store to Josephine which he retained in his possession as protection against creditors.
He asserted that the monies in the two contested bank accounts were funds taken surreptitiously from the store at various times, especially between 1943 and 1947, by Josephine and Walter.
He claimed he first learned of such improper withdrawals shortly before the commencement of the cause (the complaint references commencement April 4, 1949).
Aside from limited testimony by a son (Stanley) on minor matters, the complainant's case rested essentially on his own testimony.

Respondents' Arguments / Testimony

Josephine, the four Chmilewski sons, Edward Bogdanovich (a son of the marriage), and Jacob Cohen (landlord and business creditor) contradicted the complainant's account.
Respondents testified that in April 1948 the complainant gave the store to Walter on condition that Walter pay all outstanding business obligations; Walter paid those obligations (Cohen estimated approximately $300) and Cohen thereafter dealt with Walter regarding the business and rent.
With respect to the bank accounts, respondents maintained that the funds represented savings of Walter and Edward from private employment, military pay, and bonuses on discharge; letters and remittances from Walter and Edward were routinely addressed to Mr. and Mrs. Bogdanovich and deposited by Josephine into the accounts.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Oldham v. Oldham, 58 R.I. 268	That findings of fact by a trial justice on conflicting evidence in an equity cause are entitled to great weight and will not be set aside unless they clearly fail to do justice between the parties.	The court relied on this principle in declining to disturb the trial justice's findings, concluding he had fairly considered the evidence and that his assessment of credibility was reasonable.
Caton v. Caton, 74 R.I. 208	Same rule regarding deference to trial-justice findings of fact in equity when evidence conflicts and credibility determinations are central.	The court applied the rule from Caton in affirming the trial justice's dismissal of the bill because the findings were not clearly wrong and the trial justice had the opportunity to observe witnesses.

Court's Reasoning and Analysis

The court identified the dispositive issue as credibility because the evidence on both central questions was in serious, irreconcilable conflict. The trial justice had the benefit of observing witnesses and expressly disbelieved the complainant. Specific factual findings relied upon by the trial justice included Jacob Cohen's testimony that the complainant stated he would turn the store over to Walter and that Walter paid outstanding obligations (Cohen thereafter dealt with Walter and collected rent from him), and respondents' testimony that the contested bank accounts consisted of Walters' and Edward's military and employment savings and discharges.

The trial justice concluded the accounts were not composed of store funds taken improperly and found that the complainant had failed to establish his allegations by a fair preponderance of the evidence. On appeal the Supreme Court reviewed the record for whether the trial justice had misconceived or failed to consider material evidence. Citing existing authority that factual findings in equity are entitled to great weight where credibility determinations are involved, the court found no such misconception or failure to consider material evidence. The appellate court held that the trial justice's appraisal of witness credibility and his resulting findings were reasonable and therefore could not be disturbed on the cold record.

Holding and Implications

Holding: The complainant's appeal is denied and dismissed; the decree of the trial court denying and dismissing the bill is affirmed, and the cause is remanded to the superior court for further proceedings.

Implications: The direct effect is to leave undisturbed the trial justice's factual findings and dismissal of the bill; the Supreme Court applied established deference to credibility-based factfinding in equity and did not set a new legal precedent beyond reaffirming that rule. No broader or novel legal implications are discussed in the opinion.

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KIRILL BOGDANOVICH vs. JOSEPHINE BOGDANOVICH et al.

1. APPEAL AND ERROR. Equity. Review. Rule Followed by Appellate Court. Unless trial justice misconceives or fails to consider material evidence, supreme court will not set aside his findings of fact on conflicting evidence in equity cause unless they clearly fail to do justice between parties.

2. EQUITY. Conflicting Evidence. Rule on Appeal. Complainant alleged that he was the real owner of a store when equity proceedings were commenced and that bank accounts standing in joint names of complainant's wife and stepson represented improper withdrawals of store money and he filed suit for accounting and incidental relief. Held, that evidence sustained finding of trial court that complainant had failed to establish his case by fair preponderance of the evidence.

CAPOTOSTO, J.

This is a bill in equity for an accounting and incidental relief. Following a hearing on bill, answer and proof, the trial justice denied and dismissed the bill. The cause is here on complainant's appeal from the entry of a final decree in accordance with that decision.

In 1925 complainant married respondent Josephine Bogdanovich, hereinafter called Josephine, a widow with four children, one of whom, Walter Chmilewski, is another respondent. Edward Bogdanovich, the third respondent, is a child of the present marriage. Since 1930 the Bogdanovich family has lived in three rooms connected with a small grocery and meat store which the complainant and Josephine operated on Chalkstone avenue in Providence. The issues in this cause are: first, whether the complainant was the real owner of that store when these proceedings were commenced; and secondly, whether two bank accounts standing in the joint names of Josephine and Walter represent, in whole or in part, improper withdrawals of store money.

The extensive evidence with reference to both issues just mentioned is in serious conflict and irreconcilable. Generally speaking, it is a detailed history of the Bogdanovich family from 1930, when the store was opened, to the present time. It is unnecessary to refer specifically at any length to the evidence, as the determination of both questions at issue ultimately depend upon the credibility that is attached to the testimony of the witnesses for the respective parties.

Although Stanley Bogdanovich, a second son of the present marriage, testified for his father respecting certain minor matters, complainant's case rests entirely on his own testimony. In substance he testified that he presently is and always has been the real owner of the store, notwithstanding that in 1935, without his wife's knowledge, he executed a bill of sale of the store to her, which document he kept in his possession as a protection against creditors; that the moneys in the two bank accounts represented funds that were taken surreptitiously from the store at various times, especially between 1943 and 1947, by Josephine and Walter; and that he first knew of such improper withdrawals shortly before the commencement of this cause.

Complainant's testimony as to the present ownership of the store and the source of the moneys in the bank accounts was contradicted by Josephine, the four Chmilewski boys, Edward Bogdanovich and Jacob Cohen, the last-mentioned person being the landlord and also a business creditor. Their testimony with reference to the store in effect was that in April 1948 the complainant, who had been employed from time to time in various mills prior to that date, gave the store to Walter on condition that the latter pay all outstanding business obligations, which he did.

Cohen's testimony is significant. Apparently without interest in the matter, he testified that upon calling at the store in April 1948 to collect accrued meat bills complainant refused to pay anything on that account. The reason for such refusal appears in the transcript as follows: "Q. Did you have a conversation with Mr. Kirill Bogdanovich? A. Yes I did. Q. Tell the Court what that conversation was? A. He says I am going to turn the store over to the boy, the boy is going to pay all obligations. Q. Did the boy, as a matter of fact, pay the obligation? A. He did. Q. Do you recall what the amount of the obligations were at that time. A. Approximately $300.00." He further testified that thereafter he collected no more rent from the complainant and that all his business dealings were with Walter.

Respondents' testimony with reference to the bank accounts in substance was that they represented the savings of Walter Chmilewski and Edward Bogdanovich from earnings in private employment before they entered military service and savings from their pay while in such service, together with bonuses upon discharge therefrom. Walter served in the armed forces from May 1942 to November 1945 and Edward from September 1946 to December 1947. Respondents' testimony further shows that during those periods all letters from Walter and Edward were addressed to Mr. and Mrs. Bogdanovich. Upon receipt of such letters the remittances enclosed therein were deposited by Josephine in one or the other of the two accounts here in question.

The trial justice in his decision succinctly characterized the controversy in this cause as a "family battle." His comments in the course of his review of the evidence plainly show that he did not believe complainant. In the matter of the store he was favorably impressed by the testimony for respondents, especially that of Cohen, and with respect to the bank accounts he believed that those funds were the savings of Walter and Edward and not moneys taken from the store by either Josephine or Walter. He dismissed complainant's assertion that the existence of the bank accounts was unknown to him until shortly before the commencement of these proceedings, April 4, 1949, with the observation that "he must have been blind if he didn't see the allotment checks coming every month to the mother and father as they testified here." (italics ours) The trial justice finally denied and dismissed the bill on the ground that the complainant had failed to establish his case by a fair preponderance of the evidence.

[1, 2] As we indicated early in this opinion credibility is the determinative factor in this cause. In passing on that issue, especially if as here the evidence is in hopeless conflict, the trial justice has a decided advantage in that he has the opportunity of observing the witnesses while testifying whereas we are confined to the cold record. Unless the trial justice misconceives or fails to consider material evidence, this court has consistently held that his findings of fact on conflicting evidence in an equity cause are entitled to great weight and will not be set aside unless they clearly fail to do justice between the parties. Oldham v. Oldham, 58 R.I. 268; Caton v. Caton, 74 R.I. 208. Our examination of the present record convinces us that the trial justice fairly considered all the evidence in reaching his conclusion, which was reasonable on his appraisal of the credibility of the witnesses who testified before him. In the circumstances we cannot say that his decision was clearly wrong.

The complainant's appeal is denied and dismissed, the decree appealed from is affirmed, and the cause is remanded to the superior court for further proceedings.

BOGDANOVICH v. BOGDANOVICH