138 A. 179 | R.I. | 1927
Lillian M. Brown filed a petition for divorce and for permanent alimony August 10, 1922, and on the same day a petition for a temporary allowance, counsel and witness fees. A decreependente lite was entered August 18, 1922, whereby the respondent, her husband, was ordered to pay to petitioner $5 weekly until further order of court and a counsel fee of $25. September 21, 1922, the petition for divorce was heard and decision given for petitioner. June 2, 1925, Mr. Adler entered his appearance as solicitor for complainant. Mr. John F. Collins, the original solicitor of petitioner still continued as one of her solicitors. June 15, 1925, on affidavits of petitioner and Mr. Adler, execution was ordered to issue against respondent for $685, the arrear then due under the interlocutory decree. The respondent was arrested on the execution June 22, 1925, and on the same day released by order of the Superior Court. On the back of the execution is the following entry:
"June 23, 1925.
In consideration of the decree entered June 23, 1925, authorizing payts of $50 June 23, 1925 and $50 to be paid June 23, 1925 and $10 per week thereafter till said sum of $685 is paid in full, I hereby agree that upon failure to pay said sum or sums as above stipulated, then this execution to be in full force and effect.
Walter O. Brown. Witness signature of W.O.B.
Thomas J. Dorney. *422
To the Sheriff and His Deputies: —
I hereby authorize you to release the above Walter O. Brown from your custody by above order of the Honorable Superior Court.
Walter Adler.
Attorney for Lillian O. Brown."
There is no decree of the date of June 23 in the papers nor is there any jacket entry of such a decree. On motion of respondent, and after a hearing, July 2, 1925, a decree modifying the decree of August, 1922, was entered ordering the respondent to pay petitioner $50 June 23, $50 June 30, 1925, and "$10 each week thereafter until the full sum of $685 shall have been paid." This decree was assented to as to form by Mr. Adler, and the solicitor for respondent.
July 14, 1925, upon request of the solicitor of respondent, the final decree of divorce was prepared and caused to be entered by Mr. Collins. The order for payments in the decree of July 2, 1925, was incorporated verbatim in the final decree. Respondent complied with the decree and made the last payment about a year and three months after entry of the final decree. January 24, 1927, Mr. Adler filed a motion to modify the decree of July 2 and of July 14, 1925. After a hearing on February 11, 1927, by decree of the Superior Court, respondent was ordered to pay the petitioner $6 each week until further order of the court.
Both parties have appealed from this last decree. The respondent, being in doubt as to the correct procedure, has also brought his bill of exceptions to this court.
Petitions for temporary support, award of alimony and for the custody of children may be joined with a petition for divorce or may be brought separately. An allowance for temporary support is not dependent upon the outcome of the suit for divorce in so far as obligations have become established at the time of entry of the final decree. After that time, any future provision for the wife is for alimony and is not for temporary support. Grattage
v. Superior Court, *423
At the hearing on the petition to modify the decree for alimony, the trial justice found that there had been a change in the circumstances of the petitioner which in his judgment warranted an order for an increase of alimony. The justice supported his decree of modification on the authority of theWard case. In the Ward case a petition was filed in the Superior Court to modify a decree for alimony, entered by consent after the entry of a final decree for divorce. The decree for alimony was partially executory and not wholly executed, as was the agreement and decree in the Phillips v. Phillips,
In the Phillips case, supra, a contract between husband and wife, making provision by an executed trust for alimony, after a decision granting the petition of the wife for divorce, was held to be valid and enforceable and a bar to a subsequent petition for alimony although the original petition for divorce contained a prayer for alimony and the final decree contained no provision therefor. The right to alimony is based on the duty of the husband to support his wife; when a divorce is granted to the wife the duty of the husband to make provision for her future support continues. It is for the interest of the State, and for the parties, that when the bond of marriage has been dissolved, the rights and duties incidental to the marriage status should be determined as far as is possible within a reasonable time thereafter. If the wife claims dower, such claim must be made within six months after the final decree for divorce (G.L. 1923, C. 291, sec. 5); or, if within that period she makes claim for alimony, which is a waiver and release of dower, such claim, although not required to be made within six months, must be made with due diligence and unless so made, is subject to the defence of laches or waiver. Wilford v. Wilford,
The case is properly here on appeal. Ward v. Ward, supra. Respondent's bill of exceptions is not properly here, and is dismissed.
The petitioner's appeal is denied and dismissed.
The respondent's appeal is sustained, the decree appealed from entered on the 11th day of February, A.D. 1927, is reversed and the cause is remanded to the Superior Court.