135 A. 241 | R.I. | 1926
This case is before us on the respondent's motion, filed in the Superior Court, to modify a decree of said court for alimony by reducing the amount which the respondent is directed by said decree to pay to his former wife. On January 12, 1923, the Superior Court granted the petition of Mrs. Ward for divorce. On May 3, 1924, the final decree for divorce was entered. Said decree contained a provision directing the respondent to pay alimony to the petitioner in specified amounts at specified times during the ten years immediately following the date of the decree. The decree contained also a provision as follows: "This decree is entered by consent of the parties and with the approval of the court, with the understanding and on condition that the parties mutually agree to waive the right at any time hereafter to seek a modification thereof. . . ." On July 7, 1926, the respondent filed in said court the following motion: "Now comes the respondent, Alfred P. Ward, and represents that he is financially unable to conform to the provisions of the final decree hereinbefore entered in the above entitled case, and moves that the amount of the allowance decreed therein be reduced consistent with his present ability to pay."
At the hearing of said motion the trial justice refused to hear testimony relative to the alleged change in Mr. Ward's financial condition and his alleged inability to make payments as directed by said decree, and denied the motion. The ruling was apparently based on the ground that, in the opinion of said justice, he, without the consent of the parties, had no jurisdiction to modify a consent decree. Counsel for respondent, being in doubt as to the proper procedure to bring to this court the question involved, prosecuted a bill of exceptions and also an appeal. We will first consider briefly the question of procedure.
In Wilford v. Wilford,
In the case before us the court below was asked to modify a final decree for alimony entered after the entry of final decree for divorce. If relief had been granted, a new decree, modifying the decree complained of, would have been entered. The new decree could have been reviewed by this court on appeal and not by a bill of exceptions. When the motion to modify was denied it would have been in keeping with orderly practice to have followed the practice in equity by entering a decree embodying the decision. It, therefore, appears that an appeal and not a bill of exceptions is the proper procedure to bring to this court the question involved. The bill of exceptions is dismissed.
An examination of the papers fails to disclose the entry of a decree embodying the decision of which complaint is made. Counsel for petitioner made no objection to the absence of a decree and, while objecting to the procedure by a bill of exceptions, waived objection as to procedure by appeal. As we have above stated a decree should have been entered. However, as no issues of fact were involved, the entry of a decree would have been simply a matter of form, and as the adverse party has not objected we are not inclined to send the parties back to the Superior Court solely for the purpose of entering a decree which in this case could speak no more clearly than a decision. We will, therefore, proceed to the consideration of the case on the merits.
The respondent bases his motion for relief on G.L. 1923, Chap. 291, Sec. 5, which provides that any decree "ordering payment of alimony in any fixed sum or sums either indefinitely or for a certain period may for sufficient cause at any time be altered, amended and annulled by said court, after notice to the parties interested therein".
It is contended by the petitioner that, because the decree which the motion sought to modify was entered in accordance with an agreement between the parties and with their consent, said justice had no jurisdiction to modify said decree. She cites the following authorities to support her contention. Phillips v.Phillips,
In the case before us the decree for alimony is partially executory, and not wholly executed, as was the agreement and decree in the Phillips case. The court was not asked to modify an executed agreement of decree but only the portion of the decree which remains executory. Said Section 5 by its terms confers jurisdiction on the Superior Court to modify, on the showing of sufficient cause, any decree for *65
alimony. No exception is made as to consent decrees. It is the policy of law to leave such decrees subject at all times, until executed, to the control of the court. The respondent's agreement in advance not to appeal under any circumstances to the court for the exercise of the jurisdiction conferred by said section 5 is an attempt, before any cause arises, to oust the court of the jurisdiction, which the legislature declared shall always exist, and is void as being against the policy of the law. It is one thing for a person to agree, after the circumstances have arisen, to settle the dispute without resort to the courts. It is a different matter for him to attempt to bind himself in advance not to appeal to the courts regardless of what circumstances may arise. The right to appeal to the Superior Court for the modification of a decree for alimony was given not only for the protection of persons obligated by decrees to pay alimony but also for the well-being of society. The legislature on a change of policy may withdraw the privilege granted, but while the right exists the individual can not barter it away — even with the approval of the court. In Pepin v. Societe St. Jean Baptiste,
The power of legislation resides in the legislature and not in the courts. When a decree for alimony purports to take from an individual the right given by statute to apply for modification of the decree, the court has, without authority, attempted to abrogate the will of the legislature and supercede the statutory law by decree of court. It is elementary that courts can not thus encroach on the legislative domain. There are numerous decisions which hold that a court can not, by consent decrees or otherwise, divest itself of the power conferred by statute to modify decrees for alimony, and we have been referred to no authority to the contrary. Blake v. Blake,
The Superior Court should have accepted jurisdiction and heard the motion on its merits.
The appeal is sustained. The decision appealed from is reversed and the cause remanded to the Superior Court for further proceedings consistent with this opinion.