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Francis v. Providence School Dep't7/31/2005
DECISION OF THE APPELLATE DIVISION
This matter is before the Appellate Division on the petitioner/employee's appeal from the denial of her motion to proceed in forma pauperis in which she is alleging that she is unable to pay the cost of the trial transcript. The trial judge concluded that the employee had failed to prove that she was indigent. After reviewing the trial judge's decision and the memoranda of the parties, we deny the employee's appeal and affirm the ruling of the trial judge.
The employee filed an original petition in which she alleged that she developed stress as a result of sexual harassment at work by a superior which resulted in incapacity beginning March 6, 2003. The matter was denied at the pretrial conference and the employee claimed a trial. After a full hearing on the merits of the employee's allegations, the Associate Judge Dianne M. Connor rendered a decision denying the employee's petition. The employee filed a claim of appeal, paying the Twenty-five and 00/100 ($25.00) Dollars filing fee. At this point, the employee's attorney withdrew from the case and the employee has proceeded pro se with her appeals and motions.
Ms. Francis filed a motion to proceed in forma pauperis, alleging that she was financially unable to afford the Six Hundred and 00/100 ($600.00) Dollars required to obtain a copy of the trial transcript. She indicated that she has not worked since June 2003. Judge Connor conducted a hearing regarding the employee's ability to pay. The employee submitted a statement of her assets and liabilities and testified as to her monthly income and expenses. After considering this evidence, the trial judge rendered a decision denying the motion. She specifically stated that she found the employee's testimony to be evasive and unworthy of belief. The employee then filed an appeal from the decision and order denying her motion to proceed in forma pauperis.
Ms. Francis then filed another motion to proceed in forma pauperis for the purpose of obtaining the transcript of the hearing on her previous motion before Judge Connor. Judge Connor recused herself from hearing this second motion, in light of her credibility determination on the first motion. Chief Judge George E. Healy heard the second motion to proceed in forma pauperis and denied that motion as well.
The factual determinations made by a trial judge are accorded great deference on review. Rhode Island General Laws ยง 28-35-28(b) states that " he findings of the trial judge on factual matters shall be final unless an appellate panel finds them to be clearly erroneous." In particular, when such findings are based upon credibility determinations made by the trial judge, the appellate panel must first find that the trial judge was clearly wrong, or misconceived or overlooked material evidence in arriving at that determination, before the appellate panel may independently review the evidence.
The employee has filed a document containing three (3) numbered reasons of appeal and a lengthy written argument. Generally, the employee contends that Judge Connor misconstrued or disregarded the employee's testimony and the written documentation which establishes that her monthly expenses exceed her monthly income. After review of the record and considering the arguments of the parties, we deny the employee's appeal.
The authority of the courts to waive costs and fees for litigants is entirely discretionary. Silvestro v. Almonte, 484 A.2d 900, 902 (R.I. 1984); Jones v. Aciz, 109 R.I. 612, 626, 289 A.2d 44, 52 (1972). In particular, compelling circumstances must exist in order for a judge to waive the costs of an appeal in a civil action. Kelly v. Kalian, 442
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