The opinion
Hahn, J.,
dissenting. The husband, by written contract with his wife who expected to obtain a divorce from him, agreed to pay her $45 per week so long as she should live and remain unmarried. The consideration for this contract included not only the fulfillment of his duty to support her but also a release of all her interest in his property, which was of substantial value. To secure performance of the agreement there were deposited with a trust company, in trust, certain securities over which the husband had no control save the right — subject to the approval of the trustee — to replace the same, in whole or in part, by other securities of equal value. As the value of the securities remained unchanged, the right to substitute other securities, although for the husband's convenience, in no manner diminished the security given for the performance of his agreement. In the agreement, which is carefully drawn, no variation of the amount payable, for any reason whatsoever, is provided for, and nowhere in this agreement is the future conduct or financial condition of either party made a ground for varying said amount.
At the time of entering the decree in which the above agreement for payments to the wife and the trust agreement were incorporated by reference, the court below made no
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finding of fact as to the amount which should be paid to the wife for alimony or the value of her interest in her husband’s estate; nor — so far as appears in the record — did the court investigate the husband’s ability to pay $45 per week or ary other sum. This amount was fixed by the parties themselves in their contract which, from its context, purports to contain a complete and final agreement between them as to the amount payable by the husband and receivable by his wife.
At the hearing on the present petition the court found that the wife was not conducting herself properly and reduced the payment of $45 weekly, which the husband had agreed to pay, to $20 weekly. As a reason for not making a greater reduction the court said: “I don’t want to put this woman on the street.” The fact that the wife conveyed to her husband her interest in valuable property as a part of the consideration for the husband’s agreement to pay the $45 per week was not considered by the court. By the reasoning upon which the alimony was reduced, if petitioner’s conduct improved, her allowance might be increased, and if the husband’s conduct became improper the amount might be increased above the $45 per week originally stipulated; all this would be entirely. consistent with the decision to decrease the alimony in absolute disregard of the express contract between the parties. Yet it is clear that the future conduct of the parties, who were then living apart and expected to be divorced, was neither mentioned nor intended to be considered in fixing the amount to be paid by the husband under his contract with his wife.
In my opinion the method of enforcing a decree in a divorce case should in no manner be held to impair the obligation of a contract included as part of the decree. Incorporating the agreement in the decree must necessarily be by the consent of the parties. Such incorporation was undoubtedly made for the purpose of preventing either party from disputing the legality of the agreement, — in short, to make it “stronger and more binding.” In view
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of this fact, neither party should be permitted to claim that the reference to the agreement in the decree renders the agreement subject to change or destroys the binding effect thereof.
Russell H. Hawkins,
for petitioner.
Tillinghast & Collins, Harold E. Staples, Lee A. Worrell,
for respondent.
The rule enunciated in
Phillips
v. Phillips, 39 R. I. 92, construing contracts between husband and wife in the event of divorce, applies in full force and should be the law of the instant case. To rule otherwise is in effect to decide that our statute in regard to the collection of alimony impairs the obligation of a contract solemnly entered into between the parties, upon a sufficient consideration, a substantial part of which was the conveyance by the wife to her husband of her valuable interest in his estate.
For the reasons stated, I am of the opinion that the appeal of the petitioner should be sustained.
Sweeney, J., concurs in the opinion of Hahn, J.