Opinion
February 2, 1923.
PRESENT: Sweetland, C.J., Vincent, Stearns, Rathbun, and Sweeney, JJ.
( 1) Divorce. Dismissal of Petition. Allowances for Support. After a decision in favor of a petitioner for divorce, on exceptions of respondent the Supreme Court ordered the petition dismissed. After the filing of the petition the Superior Court had made an allowance to petitioner for her support during the pendency of the case, a portion of which was in arrears at the time of the filing of the rescript of the Supreme Court. The decree in favor of the petitioner also ordered the respondent to pay her a stated sum per week for the support of herself and child: — Held, that while with the dismissal of the petition the interlocutory decree of the Superior Court became eliminated in its entirety, still the rights of the petitioner under the order for the allowance were not affected as to anything due her up to the date of the filing of the rescript.
( 2) Divorce. Allowances for Support. Judgments. As under Gen. Laws, cap. 247, § 14, allowances for support are "so far regarded as a judgment for debt that suits may be brought or executions may issue thereon for amounts due and unpaid," it is immaterial whether proceedings to collect the same are commenced before or after the dismissal of the petition.
DIVORCE. Heard on motion of petitioner to delay order dismissing petition and motion denied.
Philip C. Joslin, Ira Marcus, for petitioner.
Bellin Bellin, James B. Littlefield, for respondent.
On September 28, 1921, the petitioner filed her petition for divorce in the Superior Court and after a hearing thereon a decision was rendered in her favor.
The respondent then brought the case to this court upon his bill of exceptions. By an opinion filed December 22, 1922, this court held that the charges in the petition had not been sustained and the petitioner was afforded an opportunity to appear and show cause, if any she had, why an order should not be made remitting the case to the Superior Court with direction to dismiss the petition. The petitioner duly appeared by counsel, was heard, and, having failed to show cause, this court by its rescript filed January 12, 1923, ordered that the case be remitted to the Superior Court with direction to dismiss the petition.
The petitioner having filed her petition for divorce also, upon the same day, filed a petition for an allowance for her support and maintenance during the pendency of the case and, after a hearing upon the same, the Superior Court on October 1, 1921, ordered the respondent to pay to the petitioner the sum of five dollars per week.
By the interlocutory decree of the Superior Court, entered January 16, 1922, it was ordered that a decision be entered for the petitioner upon her petition for divorce; that the custody of the child be awarded to her; and that the respondent pay to the petitioner the sum of ten dollars a week, beginning January 21, 1922, for their support.
Following this decree the respondent came to this court by bill of exceptions. These exceptions covered the entry of a decision for the petitioner upon the grounds of extreme cruelty and neglect to provide, the award to her of the custody of the child, and the order requiring the respondent to pay ten dollars per week for their support.
We think that with the dismissal of the petition the decree of the Superior Court of January 16, 1922, becomes eliminated in its entirety and need not be further considered.
The previous order of the Superior Court of October 1, 1921, which provided for the payment of five dollars per week for the support of the petitioner during the pendency of the petition, remains in force. The respondent having failed to keep up his payments under this order, the same were collected from him, on two occasions, by means of executions issued by the Superior Court under the provisions of Chapter 247, Section 14 of the General Laws, of 1909.
The petitioner now claims that the respondent is still in arrears and that she fears the dismissal of her petition, in accordance with the direction of this court, will debar her from any further proceedings which she might institute for the purpose of collecting the balance due; and she has accordingly filed a motion asking that the direction to the Superior Court to dismiss the petition be held in abeyance until she can take such proceedings in that court as may be necessary to compel the respondent to comply with the order now in force providing for the payment of five dollars per week.
We do not think that the dismissal of the petition will in any way affect the right of the petitioner to recover whatever may be found to be due to her under the order of the Superior Court entered October 1, 1921, and accruing between that date and the filing of the rescript of this court on January 12, 1923, ordering the petition dismissed.
We have fixed January 12, 1923, as terminating the responsibility of the respondent for the payment of five dollars per week for the reason that any delay in the dismissal of the petitioner, after that date, must be attributed to the petitioner, she having caused such further delay by her motion which is now before us.
The section of the statute above cited provides that such allowances are "so far regarded as a judgment for debt that suits may be brought or executions may issue thereon for amounts due and unpaid." Being given the force of a judgment, it is immaterial whether proceedings to collect the same are commenced before or after the dismissal of the petition. It seems to us that that question is fully covered in the opinion of this court in Grattage v. Superior Court, 42 R.I. 546.
At the hearing it was asserted by counsel that, in making up the amount for which execution had been issued, the weekly allowance for some portion of the time had been erroneously computed at ten dollars per week instead of five.
If that should prove to be so, the Superior Court, in ascertaining the amount now due the petitioner, should deduct therefrom such sums as the respondent has paid in excess of five dollars per week.
We do not see that suspending the entry of a decree in the Superior Court dismissing the petition would be of any advantage to the petitioner and her motion is denied and dismissed.
The case is remitted to the Superior Court for the dismissal of the petition in accordance with our rescript of January 12, 1923.