Smith v. Smith

• Decision Date: 20 June 1929
• Docket Number: No. 6638.,6638.
• Citation: 146 A. 626
• Parties: SMITH v. SMITH.
• Court: Rhode Island Supreme Court

146 A. 626

SMITH

v. SMITH.

No. 6638.

Supreme Court of Rhode Island.

June 20, 1929.

Appeal from Superior Court, Providence and Bristol Counties; Edward W. Blodgett, Presiding Justice.

Petition for divorce by Alice T. Smith against Arthur L. Smith. Decree for petitioner. On application of respondent for modification of decree. Decree modifying original decree, and respondent appeals. Appeal sustained, and cause remanded.

Walling & Walling, of Providence, for appellant.

Cooney & Cooney, of Providence, for appellee.

PER CURIAM. In 1922 the petitioner obtained a divorce from bed and board from the respondent. The parties had three minor children. Their ages at that time were as follows: One son, 16 years, another 8 1/2 years, and a daughter 13. The custody of these children was given to the petitioner. The respondent voluntarily agreed to give the petitioner the use of the homestead property, a large and attractive house with spacious grounds overlooking the Barrington river, to pay for fourteen tons of coal each year, and for all repairs, taxes, and insurance on said property, and to pay to the petitioner $60 per week for the support of the petitioner and the minor children of the parties; and a decree embodying the agreement was entered. For more than 6 years the respondent complied with the terms of said decree. In June, 1928, two of the children having reached an age at which they could be self-supporting, and the respondent's income having materially decreased, the respondent applied to the superior court for a modification of said decree. The motion for a modification was heard in June, 1928. Decision was rendered in October of the same year reducing the weekly payments from $60 to $50 per week. A decree was. entered modifying to this extent the original decree for allowance and refusing to grant to the respondent any further relief from his obligations under the original decree. The respondent, contending that, in view of the change in the petitioner's needs and the change in his financial condition, the superior court erred in refusing to grant greater relief, appealed from said decree to this court.

The respondent, being uncertain as to the correct procedure, has also preferred a bill of exceptions.

Appeal is the correct procedure. In an action of this nature, a decree should be entered whenever one is in order. If the decision embodied in the decree is to be reviewed, an appeal must be taken from the decree. In case of decision for absolute divorce, no decree is in order until 6 months have elapsed. When the final decree is entered, either party is at liberty to marry again. If the decision for absolute divorce is to be reviewed, it must be done on exception taken to the decision. The bill of exceptions may include also exceptions taken to rulings in the course of the trial. See Fidler v. Fidler, 28 R, I. 102, 65 A. 609, 13 Ann. Cas. 835; Thrift v. Thrift, 30 R. I. 357, 75 A. 484; Scolardi v. Scolardi, 42 R. I. 456, 108 A. 651; Camire v. Cam ire, 43 R. I. 489, 113 A. 748; Roy v. Roy, 44 R. I. 160, 116 A. 283; Grant v. Grant, 44 R. I. 169, 116 A. 481; Hurvitz v. Hurvitz, 44 R. I. 243,116 A. 661; Id. 478, 119 A. 58; Enos v. Enos, 44 R. I. 450, 118 A. 676; Stewart v. Stewart, 45 R. I. 375, 122 A 778; Harvey V. Harvey, 45 R. I. 383, 123 A. 82; Giblin v. Giblin, 45 R. I. 500, 124 A. 258; Bridges v. Bridges, 46 R. I. 191, 125 A. 281; Ward v. Ward, 48 R. I. 60, 135 A. 241; Leighton v. Leighton, 48 R. I. 195, 136 A. 443; McGraw v. McGraw, 48 R. I. 426, 138 A. 188.

The only property which the respondent owns is the estate, occupied by the petitioner, and stock of the par value of $20,000 in the Smith-Holden Company Corporation, which conducts a small paint store. At the time the original decree was entered the respondent was receiving $1,200 in dividends on stock, and a bonus of $500 per annum, and was receiving a salary of $5,000 per annum. He now receives neither dividends nor bonus, and his salary has been reduced $1,000 per annum. As president, treasurer, and manager of said corporation, the respondent receives an annual salary of $4,000. As clerk and member of the Rhode Island shellfish commission he receives an annual salary of $2,500, a total of $6,500. He has no other income. From this he contributed during the calendar year preceding the hearing below, for the support of his wife, the petitioner, and the children, a weekly allowance amounting to $3,120, and paid other bills, as required by the decree for allowance, amounting to approximately $2,000, leaving for his own support a balance of approximately $1,500. The decree appealed from reduced the weekly allowance from $60 to $50 per week, a saving of $520 per annum. By said decree the respondent is still required to give the use of the homestead estate to the petitioner and contribute in weekly payments and for coal, taxes, repairs, insurance, etc., approximately $4,500. For his own support he has approximately $2,000. Although a husband does not live with his wife and is compelled to support her apart from himself, she is entitled to no better support from him than he can provide for himself. No way is suggested whereby the respondent can increase his earnings. The respondent cannot pay his bills. He lives in one room in a boarding house. She occupies a large estate maintained by the...