Frothingham v. Anthony , 69 F.2d 506 ( 1934 )

LETTS, District judge.

This is an action at law to recover on a contract of guaranty. It is before us on defendant’s bill of exceptions and assignments of error from a judgment for the plaintiff entered upon a verdict directed by the trial court.

In May, 1927, Andrew W. Anthony brought suit for divorce against his wife, Elizabeth C. Anthony, in the superior court of the state of Rhode Island. Within a few weeks thereafter the wife filed in the same court a counter suit against her husband requesting custody of their two minor children, S. Reed Anthony and Le Baron Colt Anthony, as well as an allowance for their education and support, and for an award of the furniture and other articles in their residence, as her separate property.

Contemporaneous with the execution of the cross petition by the plaintiff and three days prior to its filing, the parties on Juñe 25, 1927, entered into a written agreement relative to matters of difference between them, which agreement was to be inoperative in event the court did not grant a divorce to Mrs. Anthony before a specified date. In this agreement the husband promised, in lieu of alimony and dower rights, which the wife expressly surrendered, to pay to her the sum of $259 per month for the support and education of each of the two sons until they respectively reached the age of 25 years, unless sooner deceased. Certain other monetary obligations were assumed under this agreement by the husband and provision made for a reduction of these monthly payments when either of said children should be in actual attendance at a college or professional school, the expenses incident to which the husband assumed. The only provisions of the agreement under which the wife was to derive any specified personal benefit are contained in the third and eighth paragraphs; the former providing that, with the exception of a few articles, the wife should have all the household effects in their Providence residence, the latter, that the husband would pay the sum of $1,000 as a counsel fee to the solicitors of the wife. All payments to he made by the husband wore specifically made binding upon, his estate.

The second paragraph of the agreement, specifying the monthly sums to he paid by the husband for the support and education of the children, contained the following clause in reference to Mrs. Anthony’s obligation, in event the court granted her a decision, to move for the entry of a final decree:

“But if said Elizabeth C. Anthony shall have failed to move for the entry of a final decree, then said payments shall bo suspended until she does so move, hut shall he re^-sumed as soon as she so moves and shall continue thereafter until all of said payments have been made.”

Under the provisions of the Rhode Island statute, the bond of marriage is not terminated until the entry of a final decree, which cannot be entered until after the expiration of a period of six months from the date of the “trial and decision.”

On the same date that the aforementioned agTeement was entered into between Andrew W. Anthony and Elizabeth C. Anthony another instrument was executed and delivered under seal by Harriet A. Frothingham, the mother of the husband. This instrument was entitled “Guarantee,” and, following a recital of consideration as follows: “In consideration of the sum of one dollar ($1) and other good and valuable considerations to me paid by Elizabeth G. Anthony * * * ” it provided:

“I, Harriet A. Frothingham, * * * do hereby for myself, my executors and administrators, guarantee the payment in full of all payments at the time or times when said payments ma,y be duo and payable, which have been undertaken to be made by my son, Andrew W. Anthony, in that certain agreement * * * a copy of which said agreement is attached hereto and made a part hereof.

“It is my express purpose to give, and I do hereby give, to the said Elizabeth C. Anthony an absolute unconditional continuing guarantee, binding upon myself, my executors and administrators, and I do hereby covenant for myself, my executors and administrators, that each and every payment specified in said agreement to be made by the said Andrew W. Anthony, or to he paid out of his estate, shall be made promptly and in full at the time or times specified in the said agreement without further notice or demand of any mature.

“And I further agree that this guarantee shall not in any way be affected, modified or annulled, so as to release, relieve, discharge, or modify my obligations hereunder in any manner, except by written consent of the said Elizabeth C. Anthony or someone in her behalf, authorized so to do, until said agreement has been completely and finally executed and until all payments therein provided for have been made and discharged in full.”

Prior to the commencement of the present suit against Harriet A. Frothingham these payments were in arrears to the extent of $5,000. The defendant in her amended answer set np the following defense in denial of liability upon her agreement or covenant of guaranty: “And further answering the defendant says that said contract described in the plaintiff’s declaration is an illegal contract and against public policy.”

At the trial of the ease before Judge Mc-Lellan, the only evidence introduced was documents comprising various petitions, motions, and decrees as entered in the superior court in Rhode Island in the divorce proceedings between the husband and wife, together with a copy of the agreement entered into between them and a copy of the undertaking signed by the defendant in this action. No evidence was offered by the defendant to establish any irregularities relative to the divorce proceedings in the Rhode Island Court; counsel for the defendant advising the trial court in effect that the defendant contended that upon the face of the documents they were illegal and against public policy. No serious contention can be made that the defendant in this action was not hound by her guaranty if the original settlement agreement between the husband and wife was valid and enforceable. This question is presented as the sole issue before us.

It is clear that the validity of this agreement must ho determined by a consideration of the law of Rhode Island governing the matter of divorce. Both Mr. and Mrs. Anthony resided in Rhode Island, and the divorce proceedings were brought in the Rhode Island courts. The settlement agreement here involved and the instrument of guaranty executed by the defendant to' this action appear upon their face to have been entered into in that state.

It was said in the case of In re Burrus, 136 U. S. 586, 593, 594, 10 S. Ct. 850; 853, 34 L. Ed. 1500:

“The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the states, and not to the laws of the United States.”

A very considerable number of decisions cited by counsel for the appellant from other jurisdictions and generally dealing with the particular laws of those states are of little assistance. As was pointed out by the Rhode Island Supreme Court in the case of Leckney v. Leckney, 26 R. I. 441, 444, 59 A. 311, 312:

“Owing to the difference between the language of our statute and that of other states relating to the subject of divorce, but little aid can be obtained from the decisions of the courts of those states in regard to the proper construction of the statute before us.”

Where questions of public policy are involved, it is the law of the state which controls. Hartford Insurance Co. v. Chicago, etc., Railway, 175 U. S. 91, 100, 20 S. Ct. 33, 44 L. Ed. 84; Northwestern Life Ins. Co. v. Johnson, 254 U. S. 96, 41 S. Ct. 47, 65 L. Ed. 155.

Chapter 291, § 18, General Laws of Rhode Island 1923, provides as follows:

“Sec. 18. No divorce from the bond of marriage shall be granted solely upon default nor solely upon admissions by the pleadings, nor except upon trial before the court in open session; nor shall such divorce be granted where the court is satisfied that there has been any collusion or corrupt conduct by the parties, or either of them, in regard to the proceedings to obtain the same.”

Nowhere have we been able to discover from an examination of the reported decisions of the Rhode Island Supreme Court, in its interpretation of this and other sections of the statute, any inhibition placed upon the parties against undertaking by amicable agreement to adjust their differences in respect to collateral and incidental matters, provided that there be involved no collusion or fraud upon the court in respect to the trial upon its merits in open session of all matters relating to the severance of the bond of marriage between them. While that court seems to look with no disfavor upon such agreements between parties, thus often avoiding protracted trials and notoriety harmful to children and others, it still retains a jurisdiction under the statute, irrespective of the agreements entered into, to deal with the custody of children and their support, as well as any unexecuted portion of an agreement for the maintenance of a wife which is embodied in a final decree.

In the case of Brown v. Brown, 48 R. I. 420, 424, 138 A. 179; 181, the court said:

“An agreement between husband and wife for alimony, if it is fair and not designed to improperly influence the conduct of the parties in the proceedings for divorce or to mislead the court, is not opposed to public policy and is valid.”

In the leading ease of Phillips v. Phillips, 39 R. I. 92, 97 A. 503, 596, the court was dealing with a contract between husband and wife making provision by an executed trust for the support of their minor children and in full settlement of all claims for alimony in event the wife should be granted a divorce. The wife thereafter petitioned the court for an award of alimony, challenging the validity of the agreement which she had entered into with her husband as being a bar to her petition. The court in upholding the agreement in part said:

“The petitioner further objects to the decree appealed frofti on the ground that the trust agreement, on the provisions of which said decree is based, is not valid and enforceable. In support of this attack the petitioner has cited to us a number of eases from other jurisdictions, in which certain agreements between parties to divorce proceedings, with reference to the amount of the wife’s alimony, have been considered. In some of the older of these eases such agreements have been disregarded, apparently because of the incapacity of the wife to contract with her husband until the bond of marriage had been dissolved. In a few others such agreements have been held to 'open a door for the attainment of divorce by collusion,’ and hence to be against public policy and void. In most of the eases cited, while the courts recognized the competency of the parties to make such a contract, the particular agreement under consideration has been treated as a nullity, because the provisions contained therein were unjust to the wife, or because in the circumstances of the particular case the court found such agreement to be part of a collusive scheme to impose upon the court in which the divorce proceeding was pending.

“The broad terms of our statute with reference to the contracts which a married woman may make permit the petitioner to enter into this contract with her husband, and in our opinion agreements of this character are not in their nature void as being contrary to public policy.”

The position thus taken by the Rhode Island Supreme Court has been repeatedly reaffirmed in later cases.

See Ward v. Ward, 48 R. I. 60, 135 A. 241 (1926); Brown v. Brown (1927), supra.

In the recent case of Reynolds v. Reynolds (R. I. 1933) 166 A. 686, 689, the court reviews many of its earlier decisions dealing with the validity of agreements entered into between parties in adjustment of pecuniary and other differences incident to divorce proceedings. The eourt reaffirms the doctrine of those cases and holds only, in addition thereto, that, where a contract between’ spouses lias been entered into with respect to amount and payments of money in lieu of alimony, and is embodied in the decree of the eourt as a part thereof, its provisions remain subject to revision by the eourt under the statute, the same as if no agreement had been made. A dissenting opinion by Mr. Justice Hahn was rendered in this ease, and in that dissent he says:

“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 he 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 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.”

The agreement now before us was in no respect unusual ©r out of harmony with the limitations laid down by the Rhode Island courts. It is an agreement seemingly fair, certainly from the point of view of the divorced husband, as most of its provisions, apart from the clause relative to the household furniture, relate to the maintenance and support of the two minor sons. The agreement, so far as it deals with the custody and rights of visitation of these children, although remaining subject to revision or alteration by the court, is in no wise opposed to sound public policy. The essential provisions of the agreement wore embodied in the final decree of the court itself. Nowhere does there appear the slightest direct evidence, nor basis for compelling inference, that the court was in any way misled or misinformed. As we have said, the defendant’s principal contention was that the agreements were had upon their face.

All such agreements as that here involved are naturally conditioned upon the event and effect of the court’s decision. Such a condition is not a defiance of the Rhode Island statute, but a recognition that the parties may not bargain in respect to the continuance of the bond of marriage.

We have purposely refrained from here making reference to many decisions in other jurisdictions in harmony with the rulings of the Rhode Island court. The only question before us is whether the contract in suit was valid and enforceable under Rhode Island law; and in our opinion it clearly was.

The judgment of the District Court is affirmed, with interest and with costs to appel-lee.