Phillips v. Phillips

• Decision Date: 01 June 1916
• Docket Number: No. 243.,243.
• Citation: 39 R.I. 92,97 A. 593
• Parties: PHILLIPS v. PHILLIPS.
• Court: Rhode Island Supreme Court

97 A. 593

39 R.I. 92

PHILLIPS

v. PHILLIPS.

No. 243.

Supreme Court of Rhode Island.

June 1, 1916.

Appeal from Superior Court, Providence and Bristol Counties; George T. Brown, Judge.

Action by Carolyn W. Phillips against Eugene R. Phillips. From a decree denying a motion for alimony, plaintiff appeals. Affirmed.

Irving Champlin and James Harris, both of Providence, for appellant. John J. Fitzgerald and James A. Shields, both of Providence, for respondent.

SWEETLAND, J. The above-entitled cause is before us upon the appeal of the petitioner from the decree of the superior court entered upon her motion for alimony.

On June 13, 1914, the petitioner filed in the superior court her petition for an absolute divorce from the respondent. Said petition contained a prayer for the custody of her minor children and for alimony. Her petition was answered by the respondent. After hearing before a justice of the superior court, said justice on July 6, 1914, rendered his decision in favor of the petitioner, granting her amended petition, giving to her the custody of her two minor children, and awarding to her "such alimony as shall be decreed in decree to be entered." On July 7, 1914, a trust agreement was executed by the respondent, Eugene R. Phillips, as party of the first part, said respondent and Alfred G. Chaffee, Esq., as parties of the second part, and the petitioner, Carolyn W. Phillips, as party of the third part. This trust agreement is an instrument which appears to have been carefully prepared by the solicitors for the petitioner and respondent. Its primary purpose is to make provision for the future support of the petitioner during her life or until her remarriage. Among other things, said agreement in substance provides that the respondent shall assign, transfer, and set over certain shares of stock, certain bonds, and a sum in cash, in all amounting to $49,000, to the parties of the second part, to be held by them as a trust fund upon the uses and trusts named in said agreement, certain of which uses and trusts are that said trustees, from the dividends, income, and interest of said trust fund, shall pay to the petitioner during her lifetime, or until she remarries, the sum of $4,000 annually in equal monthly installments, and if said dividends, income, and interest do not amount to the sum of $4,000 annually, then in addition to said dividends, income, and interest said trustees shall pay to the petitioner, during her lifetime, or until she remarries, or until said trust fund shall become exhausted, from the principal of said trust fund a sum sufficient to make the payments to her amount to $4,000 annually. Said agreement also provides for the disposition of the principal, dividends, income, and interest of said trust fund for the benefit of the minor children of the petitioner and respondent in case of the death or remarriage of the petitioner. Said agreement further provides as follows:

"(16) And it is hereby agreed and declared that the provision hereinbefore made for the said wife is made, and she doth hereby accept the same, in satisfaction and bar of any und all claims for allowance or alimony in said petition for divorce, and in satisfaction and bar of the dower or thirds to which by the common law, or by custom or statute, she might be entitled in or out of the freehold hereditaments of or to which the said husband now is, or may be during the period ending with the entry of final decree in said cause for divorce, seised or entitled."

It appears from the statement made before us by the solicitor for the respondent, which statement was not questioned by the solicitor for the petitioner, that upon the execution of said agreement the respondent at once assigned, transferred, and set over to said trustees the stock, bonds, and cash named in said agreement, that said trustees accepted the trusts reposed in them by said agreement, and since that time have faithfully executed said trusts. On July 8, 1914, said trust agreement was brought to the attention of the superior court, and said court entered an interlocutory decree vacating all decrees for allowance to the petitioner theretofore entered in said cause and providing for a temporary allowance to the petitioner out of said trust fund. A part of the language of said interlocutory decree is as follows:

"Said temporary alimony being in accordance with terms of said trust agreement, the provisions of said trust agreement being in lieu of, and in substitution of. and in bar of all the claims for alimony or dower on the part of said petitioner against said respondent, or in the estate of said respondent, and the decree for permanent alimony hereafter to be entered herein to be in accordance with the provisions of said trust agreement."

On January 11, 1915, the superior court entered a final decree in said cause, dissolving the bond of marriage between the petitioner and respondent, and awarding to the petitioner the custody of their minor children. Said final decree contained no provision as to alimony. On January 27, 1915, the petitioner filed her motion in the superior court for the entry of a decree granting to her alimony out of the estate of the respondent. This motion was heard in the superior court before Mr. Justice Brown, and was denied. By the order of said justice a decree was entered adjudging that under and by virtue of said trust agreement the respondent had made provision for the petitioner in lieu of and in bar of alimony, that the petitioner had accepted said provision, and that said trust agreement is in bar of alimony. From said decree the petitioner has appealed to this court.

The respondent objects to the consideration of this appeal on the ground that the petition for divorce contained a prayer for alimony, and that the final decree entered by the superior court on January 11, 1915. dissolving the bond of marriage between the parties and awarding to the petitioner the custody of their minor children, is conclusive as to all matters prayed for in the petition. We do not agree with this contention of the respondent. The prayer for alimony contained in the petition was not pressed before the superior court, and that court in said final decree made no adjudication upon said prayer. Section 5, c. 247, Gen. Laws 1909, provides for the prosecution of a claim for alimony on proceedings begun after the entry of final decree for divorce; and this court has approved such claims prosecuted after the entry of final decree. Warren v. Warren, 36 R. I. 167, 89 Atl. 651; Wilford v. Wilford, 38 R. I. 55, 94 Atl. 685.

The respondent also asks to have the appeal dismissed on the ground that an appeal is not the proper proceeding by which to bring the...