Reynolds v. Reynolds

• Decision Date: 13 June 1933
• Docket Number: No. 562.,562.
• Citation: 166 A. 686
• Parties: REYNOLDS v. REYNOLDS.
• Court: Rhode Island Supreme Court

166 A. 686

REYNOLDS

v. REYNOLDS.

No. 562.

Supreme Court of Rhode Island.

June 13, 1933.

Appeal from Superior Court, Providence and Bristol Counties; Charles A. Walsh, Judge.

Petition for divorce, custody of and an allowance for support of three minor children, and for alimony by Grace G. Reynolds against William V. Reynolds, wherein respondent filed a motion in the nature of a cross-petition. From a decree modifying a final decree for the payment of alimony, petitioner appeals.

Appeal denied and dismissed, and decree affirmed and cause remanded, with directions.

Russell H. Hawkins, of Providence, for appellant.

Tillinghast & Collins, Harold E. Staples, and Lee A. Worrell, all of Providence, for respondent.

STEARNS, Chief Justice.

This cause is here on the petitioner's appeal from a decree of the superior court modifying a final decree for the payment of alimony in a proceeding for divorce.

In August, 1929, Grace G. Reynolds filed a petition for divorce from her husband. William V. Reynolds, for the custody of and an allowance for the support of three minor children and for alimony. Decision was rendered for petitioner April 2, 1930, and respondent's motion in the nature of a cross-petition was denied. The final decree of divorce was entered October 7, 1930. In addition to the usual terms, this decree contained these provisions: "All questions of alimony, property rights, the custody of the minor children of said parties and the education, maintenance and support of said minor children, are hereby settled and determined as provided in a certain written agreement entered into by the parties on the 8th day of March, A. D. 1930, which said agreement is hereby referred to and incorporated herein as fully and completely as if herein set forth in full."

In the preamble of the agreement thus referred to, the parties state that they are living apart, that a petition for divorce has been filed (a copy of the petition is annexed to and made a part of the agreement), and that they are desirous of making a full settlement of all their property and other rights arising out, of their marriage. The husband agreed: (1) To make no objection to the wife's petition for the custody of the children, although reserving the right to petition the court for the custody of any child; (2) to pay to the wife $45 weekly on and after January 18, 1930, so long as she lives or until she remarries, and $10 weekly for the support of each minor child while in the custody of and living with the wife.

By the fifth clause the husband agreed to guarantee performance of the agreement and to deliver to the Industrial Trust Company, trustee under a deed of trust to be made thereafter, stocks and bonds of the value of $25.000; he to have with respect to the property so deposited full power of substitution and full beneficial use of such securities as to income or otherwise; his wife to have the right, if he fails to make payments as agreed, to have the amount in arrears paid from the income or the principal of the trust fund.

By the eighth clause the wife agreed to receive said payments in full satisfaction and discharge of all claims and demands which she may have against the husband for temporary allowance, alimony, dower or any or all rights akin to dower, and all statutory rights which she may now have or may hereafter have in the estate of the husband, and that she will and does take the provision made for her in the agreement in lieu of any dower rights, joint ownership, or other interest. Other provisions—with respect to division of the household furniture, etc.—are not material to the present proceeding.

On April 2. 1930, the husband established the trust which was to continue until the death or remarriage of Grace G. Reynolds.

In May, 1932, the respondent filed a petition praying for a modification of the decree for the payment of alimony and for custody of the minor children because of a change in his financial condition and because of the improper conduct of his former wife. A motion to dismiss this petition on the ground that the court was without jurisdiction was denied. The court heard the testimony of the respondent, and, no evidence being presented by Grace G. Reynolds, entered an order modifying the final decree by awarding the custody of the children to the respondent and ordering him to pay Grace G. Reynolds as alimony the sum of $20 per week and restraining her from accepting an amount greater than that sum from the trustee.

An appeal was taken by Grace G. Reynolds, and subsequently a motion was filed by the respondent to reinstate the order appealed from under authority of section 28 of chapter 339. Gen. Laws 1923. The motion was granted as to the custody of the children but denied as to the allowance to the wife, and an order was entered requiring the respondent to pay the sum of $45 a week until the determination of the appeal.

The cause is here upon the appeal of Grace G. Reynolds from the decree modifying the future payments of alimony. The only question presented, is as to the power of the superior court to modify the amount of future payments of alimony.

Section 5, chapter 291, Gen. Laws 1923, provides that, whenever a divorce is granted for fault on the part of the husband, the wife shall be entitled to dower if claimed by proceedings begun within six months after the entry of the final decree; if the dower is not thus claimed or if claim is made for alimony within said period dower is deemed to be waived and released and the only relief of the wife is a claim for alimony chargeable upon the estate of the husband, or some specific portion thereof, as the court may decree. A decree ordering the payment of alimony in any fixed sum, either indefinitely or for a certain period, may for sufficient cause at any time be altered, amended, and annulled by the court.

Section 14 provides that the court may regulate the custody and provide for the support of minor children of persons by it divorced and may make a reasonable and proper allowance for the support of the wife, which allowance shall be so far regarded as a judgment for defendant that suits may be brought or executions may issue for amounts due and unpaid, to run against the goods and chattels of the husband and, for want thereof, against his body upon the affidavit of a party or her attorney that a certain sum is due and unpaid.

A respondent who is in default in the payment of an allowance for the separate maintenance of the wife or of alimony is subject to imprisonment upon process for contempt or on execution for failure to comply with the decree of the court. Grattage v. Superior Court, 42 R. I. 546, 109 A. 86; In re Asadoorian, 48 R. I. 50, 135 A. 322; Boyden v. Boyden, 50 R. I. 326, 147 A. 621, 66 A. L. R. 214. The regulation of the custody and the provision for the support of minor children, whether provided for by a final or an interlocutory decree, is always subject to the control of the court. Gen. Laws 1923, c. 291, § 14. Budlong v. Budlong, 51 R. I. 113, 152 A. 256.

In divorce proceedings a contract between husband and wife with respect to the amount and the payment of money in lieu of alimony will be recognized and enforced if it appears to the court to be reasonable and fair to the parties and not collusive. Petitioner relies particularly on the case of Phillips v. Phillips, 39 R. I. 92, 97 A. 593, 594. In that case decision was...