116 A. 883 | R.I. | 1922
This is an action of debt on a decree of the Probate Court for the county of Worcester, Mass. The case is before this court on the plaintiff's exception to the ruling of the Superior Court sustaining a demurrer to the declaration.
Said declaration alleges that on the 4th day of May, 1897, said Probate Court entered an order awarding the care and custody of Clarence A. Hewett, the minor child of said Clarence N. Hewett and Vitilina Hewett (husband and wife), to said Vitilina Hewett, prohibiting said Clarence N. Hewett from imposing any restraint on the personal liberty *309 of said Vitilina Hewett; and ordering said Clarence N. Hewett to pay to said Vitilina Hewett for her support and for the support of said minor child the sum of $10.00 on the first day of June, 1897, and the further sum of $10.00 on the first day of each and every month thereafter until the further order of said court. The declaration further alleges that said decree is in full force and not reversed, annulled, modified or satisfied in whole or in part and that the sum of $2,810, together with legal interest thereon, is now due.
The demurrer to said declaration was upon the following grounds: (1) that plaintiff by virtue of said decree obtained no absolute or vested right to demand or receive the money ordered by said decree to be paid; (2) that the court which entered said decree may at any time in its discretion modify or revoke said decree; (3) that by the law of Massachusetts exclusive jurisdiction to enforce the decree in question is in the court which rendered said decree; (4) that by the law of Massachusetts said decree is revocable and is not enforceable until after the court entering said decree shall on hearing determine that said decree shall be enforced.
The plaintiff filed a motion in the Superior Court to strike out the above demurrer and to strike out each and every ground of demurrer for the reason that "each of the grounds of demurrer alleged is based upon the law of a state other than the State of Rhode Island and that the defendant has not pleaded what the law of said other state is." The Superior Court denied said motion and the plaintiff excepted but at the hearing before us this exception was waived.
If said decree is final and conclusive and not subject to modification or annulment by the court entering the same it is entitled, under Section 1, Article IV of the Constitution of the United States, to full faith and credit in the courts of this state. On the other hand, if the plaintiff has no absolute and vested right to demand and receive installments of alimony ordered by said decree to be paid, the decree is given no protection by said constitutional provision. Mr. Justice WHITE inSistare v. Sistare,
We are of the opinion that the declaration does not in accordance with the ordinary rules of pleading state a cause of action for the reason that by the terms of the declaration it does not appear that the decree is an enforceable judgment in the state where it was rendered. The decree in question was entered in the course of a divorce proceeding between the parties. Said decree ordered alimony to be paid to the plaintiff in monthly installments. As we have before us no copy of said decree it is impossible without resorting to the Massachusetts law to ascertain whether said decree was for temporary or permanent alimony. A decree for temporary alimony is an interlocutory decree. Its enforcement is, in some jurisdictions, subject to the discretion of the court entering the decree. 14 Cyc. at 797.
It does not appear from the declaration that the court which entered the decree may not in its discretion by the modification or annulment of the decree take away the plaintiff's rights under said decree to receive the installments which by the terms of the decree have become due.
The case is before us on demurrer and unless we take judicial notice of the laws of Massachusetts we have no *311
information as to whether the plaintiff by virtue of the decree in question has a vested right to demand and receive the installments which have become due. The Massachusetts court in a case similar to the one before us, Page v. Page,
As the declaration fails to state the nature of the decree upon which the plaintiff seeks to recover, the question arises whether this court will examine the statutes of Massachusetts and the reported decisions of the court of last resort in the latter commonwealth in order to ascertain if possible whether said decree has in said commonwealth the force of an enforceable judgment. Ordinarily the law of a sister state is a fact which must be proved by evidence the same as any other fact, but state courts may when it is anticipated that a Federal question may arise as to the effect of a judgment of a court of another state take judicial notice of the law of such other state. 1 Chamberlayne on Evidence, Sec. 587; Wigmore on Evidence, Sec. 2573; Paine v. Schenectady Ins. Co.,
The court below, following Paine v. Schenectady Ins. Co.,supra, took judicial notice of the laws of Massachusetts and, as a provision of the Federal constitution is brought in question we will notice judicially the laws of the latter commonwealth.
Gen. Laws, 1909, cap. 292, § 49, provides that a copy of the statutes of any state purporting to be published by authority thereof and the published reports of decisions of the courts of any state shall be admitted in all the courts of this state asprima facie evidence of the laws of the state under whose authority they respectively purport to have been published. SeeHorton v. Reed,
The parties agree that the Massachusetts court in entering the decree in question exercised jurisdiction conferred by a Massachusetts statute which is now Section 33 of Chapter *313 153 of the Revised Statutes of Massachusetts of 1902. Said section is as follows: "If a husband fails, without just cause, to provide suitable support for his wife, or deserts her, or if the wife, for justifiable cause, is actually living apart from her husband, the probate court may, upon her petition or, if she is insane, upon the petition of her guardian or next friend, prohibit the husband from imposing any restraint on her personal liberty during such time as the court shall by its order direct or until the further order of the court thereon; and, upon the application of the husband or wife or of her guardian, the court may make further orders relative to the support of the wife and the care, custody and maintenance of the minor children of the parties, may determine with which of their parents the children or any of them shall remain and may, from time to time, upon a similar application, revise and alter such order or make a new order or decree, as the circumstances of the parents or the benefit of the children may require."
In McIlroy v. McIlroy,
In Knapp v. Knapp,
See also French, v. French,
The Massachusetts decisions already cited clearly show that the court which entered the decree upon which this suit is brought would not hesitate, when justice required such action, to modify or annul the decree by changing the amount which had accrued even when the husband "was able to pay it," and even if the husband had deceased. From the opinion in Wagner v.Wagner, supra, it does not appear that the statutes of Massachusetts and the reported decisions of the court of last resort of that commonwealth were brought to the attention of the court. The statute by authority of which the decree then under consideration was rendered is not referred to and no decisions of the Massachusetts court are cited. What the law of Massachusetts *316 was when Wagner v. Wagner, was decided was a question of fact and we are not concerned with the question whether the court erred in its findings of fact relative to the finality, under the Massachusetts laws, of the decree then under consideration. We have made our finding as already set forth relative to such portions of the Massachusetts law as are material for the consideration of this case.
As the decree upon which this suit is based is interlocutory and conditional in Massachusetts it should not be considered as final and conclusive in Rhode Island.
The plaintiff's exception to the ruling of the Superior Court sustaining the demurrer to the declaration is overruled and the case is remitted to the Superior Court for further proceedings.