Grady v. Grady, 83-293-A

• Decision Date: 22 January 1986
• Docket Number: No. 83-293-A,83-293-A
• Citation: 504 A.2d 444
• Parties: Mary E. GRADY v. Thomas J. GRADY. ppeal.
• Court: Rhode Island Supreme Court

Page 444

504 A.2d 444

Mary E. GRADY v. Thomas J. GRADY.

No. 83-293-Appeal.

Supreme Court of Rhode Island.

Jan. 22, 1986.

William Y. Chaika, Chaika & Loffredo, Cranston, for plaintiff.

Joseph J. McGair, Petrarca & McGair, Warwick, for defendant.

OPINION

KELLEHER, Justice.

The litigants in this Superior Court civil action were married in August 1962 and are the parents of two children. In July 1973 the husband left Rhode Island and took up residence in Nevada where in September 1973 he obtained an ex parte divorce. He returned to Rhode Island on the day before Christmas 1973. Subsequently, in early May 1974, the litigants entered into an agreement ¹ calling for a variety of payments, including alimony, child support, and the children's education. Later, in August 1977, the wife instituted this suit, alleging that her husband had failed to comply with the provisions of the agreement. Time marched on, and in February 1983 a Superior Court jury came back with a verdict for the wife for $49,000, "no interest." Hereafter we shall refer to the litigants by their first names.

Thomas's motion for a new trial was denied, and we are confronted with cross-appeals. Thomas faults the trial justice for several rulings made during the trial, including portions of the charge to the jury and the rejection of his new-trial motion. Mary, on the other hand, complains about the trial justice's refusal to impose prejudgment interest. In considering Thomas's appeal, we shall discuss only those claims of error that, in our opinion, merit some consideration.

At trial Thomas sought to produce evidence indicating that because of his financial straits he was unable to meet the commitments that he had undertaken and sought to establish the defenses of "impossibility of performance" and "unconscionability" of the agreement. He also criticizes the trial justice's refusal to void the agreement because of a provision that would increase or reduce his obligation depending upon whether the cost-of-living index annually published by the United States Department of Labor indicated an upward or downward trend.

This controversy can best be put into focus by referring to the trial justice's comment as he denied the motion for a new trial, in which he stated:

"There was an injustice done in this case. The injustice was that the jury should have returned a verdict for the plaintiff in the amount of seventy-five thousand dollars rather than forty-nine thousand dollars, and if there was error, it was error on the part of the Court in submitting to the jury the question of a credit for the deed of real estate that the defendant executed at a particular point in time. That may have confused the jury in this case, but that was an error against the plaintiff. * * * Although I am not satisfied with this jury verdict, the plaintiff has not made a motion for a new trial and, therefore, I cannot change that aspect of the verdict. I cannot grant an additur. The only motion before me is defendant's motion for a new trial and that motion borders on frivolous in this case. The defendant's motion is denied."

We are of the opinion that the trial justice's rejection of the newtrial motion was correct and his refusal to charge the jury on the defenses of "unconscionability" and "impossibility" was well warranted.

To put these defenses in perspective, we go back to the time Thomas testified. He conceded that he had fled the jurisdiction and traveled westward to Nevada. At that time he had failed to comply with a support order that Mary had obtained from the Family Court. Although Thomas did return to Rhode Island for a sojourn with his wife and two children, he had a girl friend in Las Vegas who was expecting him to return and marry her. In mid-December 1973 he deeded all his interest in the marital domicile and the vacant lot to Mary. Although he professed to be under pressure at this time, he did have the presence of mind to put his legal talents to work and add to the deed a printed disclaimer stating that the conveyance was being made subject to all encumbrances and restrictions of record, including any taxes due the town of Cumberland. Not quite four months later, in early May of 1974, Thomas signed the agreement he now challenges. A week after its execution, he returned to Las Vegas where he married his girl friend. He also contacted his Nevada counsel, with the result that the agreement was incorporated within the Nevada divorce decree.

In support of his unconscionability and impossibility claims, he now refers us to several cases, one of which is Harrigan v. Harrigan, 135 Vt. 249, 250, 373 A.2d 550, 552 (1977), where the court ruled that it would be justified in invalidating such agreements as the one now before us upon presentation of evidence of fraud, unconscionable advantage, impossibility of performance, or "hampering circumstances intervening beyond the expectation of the parties." The court in Harrigan was affirming the trial justice's refusal to recognize a property-settlement agreement. In doing so, it described the written agreement as very short and executed in a period of marital stress at a time when the wife had no attorney or opportunity to consult with one.

Long ago the United States Supreme Court in Hume v. United States, 132 U.S. 406, 411, 415, 10 S.Ct. 134, 136, 137, 33 L.Ed. 393, 396, 397 (1889), ruled that a court would usually refuse to enforce a contract on the ground of unconscionability only when the inequality of the bargain was so manifest as to shock the judgment of a person of good sense and when the terms were so unreasonable that " 'no man in his senses and not under delusion, would make on the one hand, and as no honest and fair man would accept on the other' * * *."

Here, unlike the wife in Harrigan, Thomas executed a multi-faceted document that was drawn with meticulous care--so much so...