OPINION
This mаtter came before the Supreme Court on June 17,1997, pursuant to an order directing both parties tо show cause why the issues raised in this appeal should not be summarily decided. Both the plaintiff, Kathleen Y. Hemingway (plaintiff), and the defendant, Edward F. Hemingway (defendant), have filed appeals from the entry оf judgment in favor of the plaintiff.
After hearing the arguments of counsel for the parties and after reviewing the memoran-da of the parties, we are of the opinion that cause has not been shown; therefore, the appeals will be decided at this time.
The facts and travel of the case indicate that the parties were married on October 2, 1965. The marriage produced three сhildren. On February 28, 1988, defendant obtained an uncontested Haitian divorce. Just prior to the divorce thе parties, with the assistance of counsel, entered into a property-settlement agreеment that provided for custody, distribution of property, and payment of child support and alimony to plaintiff. Both the divorce decree and the agreement specifically stated that the аgreement was to be incorporated but not merged into the divorce decree. As such the аgreement survived as an independent, enforceable contract between the two parties.
See Riffenburg v. Riffenburg,
On January 2,1992, plaintiff filed a breach-of-contract action in the Superior Court, alleging that dеfendant had breached the terms of the agreement by failing to contribute towards the children’s educational expenses. The plaintiff relied on paragraph 7 of the agreement, which provides that:
“[t]he parties agree to divide equally any secondary school or college bills thаt the children incur.”
The trial justice issued a written decision in which she found that defendant had breached the contract and entered judgement for plaintiff in the amount of $53,755.80. The defendant filed a motion for a new trial or, in the alternative, a motion for remittitur. These motions were denied. The plaintiff sought a ruling on her request for an award of attorney’s fees. In a subsequent decision the trial justice awarded рre- and post judgment interest to plaintiff but denied her request for attorney’s fees. Both parties appealed from this decision.
The defendant’s motion for a new trial did not allege a manifest error of law on the face of the judgment, nor did it allege or claim the existence of evidence newly discovered since the trial of the action.
Tillson v. Feingold,
Both plaintiff and defendant filed notices of appeal with respect to this second decision. Thus defendant’s appeal to this court is untimely. Althоugh neither party has addressed this issue, it is well-settled that a motion for a new trial filed after a
*230
nonjury trial, whiсh does not allege either of the appropriate reasons set forth in Rule 59(a) of the Superior Court Rules of Civil Procedure, is a nullity and does not toll the period in which an appeal may be taken to this court, pursuant to Article I, Rule 4(a)(4), of the Supreme Court Rules of Appellate Prоcedure. We have previously noted that the provisions of Rule 4 relative to the filing of a notice of appeal are mandatory. “Our appellate jurisdiction may not be propеrly invoked when an appeal is filed more than twenty days subsequent to the entry of the judgment of which review is being sought.”
Title Investment Co. of America v. Fowler,
Finally, the court must review plaintiffs cross-appeal frоm the denial of her request for attorney’s fees. The plaintiff alleges that there was a complete absence of any justiciable issue of either fact or law by the losing party thereby entitling hеr to an award of attorney’s fees pursuant to G.L. 1956 § 9-1-45, which provides,
“The court may award a reasonable attorney’s fee to the prevailing party in any civil action arising from a breach of contract in which the court (a) finds that there was a complete absence of a justiciable issue of eithеr law or fact by the losing party.” (Emphasis added.)
After reviewing the record, however, we do not see a complete absence of a justiciable issue of either law or fact. Accordingly wе affirm the trial justice’s decision to deny the plaintiffs request for attorney’s fees.
Consequently we deny and dismiss both appeals, and the judgements appealed from are affirmed. The papers may be returned to the Superior Court.