Warren v. Warren

• Decision Date: 11 February 1914
• Citation: 36 R.I. 167,89 A. 651
• Parties: WARREN v. WARREN.
• Court: Rhode Island Supreme Court

89 A. 651

36 R.I. 167

WARREN

v. WARREN.

Supreme Court of Rhode Island.

Feb. 11, 1914.

Appeal from Superior Court, Providence and Bristol Counties; Charles F. Stearns, Judge.

Action for divorce by Mary A. Warren against Edmund M. Warren. From an order after decree of divorce in favor of petitioner, granting an injunction and appointing a receiver of the property of defendant pending a determination of the question of alimony, the New England Land Company, to whom defendant was alleged to have conveyed his property in fraud of plaintiff, appeals. Affirmed.

Henry W. Hayes and Richard E. Lyman, both of Providence, for petitioner. James H. Rickard, Jr., of Woonsocket, for respondent.

PARKHURST, J. The original proceeding in the above-entitled cause was a petition for divorce a vinculo matrimonii filed February 10, 1909, and the respondent Warren was duly served with process and entered his appearance, and thereafter the petition was prosecuted and defended until a final decree was entered, divorcing the petitioner as prayed, October 4, 1911. In this original petition petitioner also prayed for alimony out of her husband's estate, to be charged thereon. Pending the trial of the original petition, and on January 3, 1910, Mrs. Warren filed a supplemental petition wherein she alleged the ownership by her husband, when the original petition was filed, of numerous large tracts of land in ten cities and towns in this state, describing the same by references to deeds and records; and further alleged that he was the owner of other real estate of great value situate in the states of Maine, New Hampshire, Massachusetts, Connecticut, and New York, and in the province of Nova Scotia, and that he had personal estate of great value; and claimed that she was entitled to alimony based upon the value of all said property. She further alleged that in the month of May, 1909, he caused the deeds mentioned to be recorded in the land records of the various named towns and cities of this state and in the other states named and in Nova Scotia, and that the deeds purported to convey to himself as trustee in the state of Massachusetts and to the New England Land Company in all the other places all his interest in and to his real estate in this state, and in said other states and province respectively. She further alleged that all said deeds were prepared by the respondent after the filing of her petition for divorce and alimony, and were so prepared and recorded for the purpose of hindering and preventing the petitioner from obtaining alimony out of his estate, and from obtaining surety for any alimony which might be awarded to her, and for the purpose of defrauding and depriving the petitioner of the right and benefit of alimony and of obstructing and thwarting the decrees and processes of the court; that said instruments, purporting to contain releases of dower by the petitioner, were not in fact executed by the petitioner; and that any handwriting of the petitioner appearing thereon was fraudulently used by the respondent; that none of the instruments recorded as aforesaid was delivered to the New England Land Company, named therein as grantee; that the New England Land Company knew the fraudulent purpose and intent of the respondent at the time the instruments were executed and left for record, that no consideration was paid by the New England Land Company for said real estate, and that the pretended transfers of the title to said real estate to said company and to said Warren, as trustee, were of no consequence against the rights of the petitioner; and that all said described real estate was properly chargeable with a lien for any alimony which might be awarded; and prayed for the establishment of a lien upon the real estate described.

April 22, 1910, Mrs. Warren filed a further supplemental petition, referring to her petition for divorce and also to her petition of January 3, 1910; and alleged "that, by a supplement to said petition, filed January 3, 1910, she set forth the ownership by said respondent of a large amount of property in this and other states, both real and personal; that, at the time of filing her original petition, contracts to a very large number had been made respecting the sale of a large portion of said real estate, upon which contracts there was then due to said respondent the sum of, approximately, seven hundred eight thousand ($708,000.00) dollars; that, based upon the ordinary course of collections upon said contracts, and upon contracts which have been made since the time of the filing of said petition for divorce relating to other portions of said land, there would now be due to said respondent the sum of, approximately, seven hundred twenty thousand ($720,000.00) dollars; that, however, upon representations made by said respondent to this petitioner there is only due the said respondent at the present time, upon all the said contracts the sum of, approximately, two hundred thirty thousand ($230,000.00) dollars; and that, of the large amount represented by the difference between the amount which should be due as stated by the petitioner and the amount due as stated by the respondent, there is, as stated by said respondent to this petitioner, but little, if any, of the money representing said sum now in his possession; that the discrepancy above indicated can exist only by reason of a willful diversion and concealment by the respondent of a large portion of his estate; that this petitioner believes from the conditions above set forth, and by reason of the facts and circumstances as set forth in her supplemental petition above referred to, and therefore avers, that said respondent has deliberately diverted and concealed a large portion of his property for the purpose of preventing this petitioner from securing an award of alimony commensurate with the value of his entire property, and enforcing said award; and that your petitioner believes and therefore avers that the respondent will continue to fraudulently divert and conceal his said property, both real and personal, for the purposes above stated. Wherefore she prays that said respondents, Edmund M. Warren, and the New England Land Company, named in the amended petition in this cause, be enjoined from conveying or incumbering any portion of the real estate set forth and described in said supplemental petition, and from assigning or transferring any contracts relating to the sale or the disposition of the same, and from collecting moneys upon said contracts, until the further order of this court. And your petitioner further prays that this court will appoint some suitable disinterested person as receiver to take charge and control of the property set forth and described in said supplemental petition, and to collect and receive all sums which may be due upon all of said contracts now outstanding, and to hold said sums to await the further order of this court; and that your petitioner may have such other and further relief as the nature of the case may require, and to this court may seem meet."

A decree was entered upon this petition, April 22, 1910, granting an injunction restraining conveyances and incumbrances, but not as to collections of moneys, and not appointing a receiver. On the same date, April 22, 1910, petitioner also filed her motion that the New England Land Company named in her petitions as above set forth be made a party respondent; said company being incorporated under the laws of Maine, and having appointed in this state an attorney in fact upon whom service of process might be made according to law.

The record of this case in the superior court shows that, pursuant to said motion filed April 22, 1910, the petitioner was granted leave to add the New England Land Company as a party respondent; that on said 22d day of April, 1910, she did add the New England Land Company as a party respondent; that on said 22d day of April, 1910, a citation was issued notifying the New England Land Company that it had been made a party respondent to the cause, giving it notice regarding certain allegations made against it in the petition filed April 22, 1910 (already referred to), and notifying it to appear April 30, 1910, at 9:30 o'clock a. m. to be heard relative to petitioner's prayers for injunction, receiver, etc.; that the citation was duly served on April 23, 1910; that the cause was duly taken as confessed by the New England Land Company on the 19th of January, A. D. 1912; that on the 24th day of January, 1912, the New England Land Company moved that the "decree pro confesso be set aside and that it may be permitted to answer in said cause"; that on the 6th day of February, A. D. 1912, the decree pro confesso was set aside on condition "that it" (New England Land Company) "enter its appearance within two days and on condition that said New England Land Company is bound by the decree referring this cause to a master, * * * and on condition that said New England Land Company, if it sees fit to appear before said master, shall defend the allegations of the petitioner upon the merits only"; that appearance was entered in accordance with the conditions imposed: and that ever since the New England Land Company has participated in the proceedings in this cause.

It further appears that the following decree was entered in the superior court January 19, 1912: "The above cause came on to be heard this day upon the petition of the petitioner for alimony out of the property and estate of the respondent and upon other questions incidental thereto, and thereupon, after a full hearing thereof, both parties being present or represented by counsel, it is ordered, adjudged, and decreed that the petitioner is entitled to alimony out of the property and estate of the respondent; and, for the purpose of ascertaining the amount of such alimony, and the property upon which the same might be established as a lien, it is further ordered, adjudged, and decreed that...