Cohen v. Murphy
| Decision Date | 12 June 1975 |
| Parties | , 77 A.L.R.3d 1310 Evelyn R. COHEN v. Stephen J. MURPHY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Anthony P. Sager, Cambridge, for Stephen J. Murphy.
Before TAURO, C.J., and BRAUCHER, HENNESSEY, KAPLAN, and WILKINS, JJ.
A divorce decree awarded to the wife custody of the three minor children of the parties and ordered the husband to pay to the wife 'the sum of fifty (50) dollars each week for support of said minor children only.' The husband subsequently was awarded benefits based on total disability by the Veterans' Administration and the Social Security Administration, including benefits for the minor children. We hold that those benefits are to be credited against the amounts due under the decree for support, and reverse a contempt decree based on a contrary view.
The divorce decree nisi was entered on December 23, 1969. After the divorce decree became final both parties remarried. On August 29, 1972, the wife filed a petition that the husband be adjudged in contempt for nonpayment, and the matter was heard on March 23 and 23, 1973. On March 23, 1973, the judge of the Probate Court entered an order that the husband pay $150 each month for child support, 'to be paid in addition to any sums paid to said children by the Social Security Administration or the Veterans' Administration,' commencing April 1, 1973. On March 30, 1973, the husband was
Also on March 30, 1973, the wife filed an acknowledgment of payment of $3,600 by the release of the husband's interest in certain real estate, 'said release to be in complete satisfaction of' the contempt judgment, it being understood that the husband 'while satisfying the judgment of $3,600 is reserving his right to appeal said judgment.' The husband subsequently appealed to the Appeals Court from the contempt decree, and we transferred the case to this court on our own motion under G.L. c. 211A, § 10(A).
We summarize the judge's report of material facts. The husband had been employed, but he became ill and was hospitalized by the Veterans' Administration from August 21, 1969, until April 1, 1971. Benefits were awarded to him based on his total disability, effective about April, 1970, and including benefits for the minor children. He receives each month about $495 from the Social Security Administration and $242 from the Veterans' Administration. In addition each month two of the three children receive about $69.40 and the youngest receives $104 in social security payments, and Veterans' Administration benefits for the children are paid to the husband and have been paid by him to the children on occasion. The judge did not find the amount of the Veterans' Administration benefits for the children but the husband testified that they amounted to $21 each month in total.
The judge found that the husband had made no payments on the weekly $50 support order from November 2, 1971, to March 30, 1973, a period of some seventy-two weeks, that the arrearage was $3,600, and that no agreement was ever made that his duty to pay terminated with the payment of dependency benefits by the Veterans' Administration or Social Security Administration. The husband had, in fact, wilfully violated the December 23, 1969, decree and owed $3,600 in child support payments.
1. Mootness. When a judgment which has been satisfied by the judgment debtor's paying money is reversed, he is entitled to restitution of the amount which he has lost. Delano v. Wilde, 11 Gray 17 (1858). We do not encourage disregard of court orders. Cf. Henderson v. Henderson, 329 Mass. 257, 258, 107 N.E.2d 773 (1952); Ellis v. Doherty, 334 Mass. 466, 468, 136 N.E.2d 203 (1956). We have assumed that a husband who complies with a support order does not waive his right of appeal. Perry v. Perry, 329 Mass. 771, 110 N.E.2d 498 (1953), and cases cited. In the present case there was settlement of an order for the payment of money by the conveyance of an interest in land, but in view of the wife's explicit recognition of the husband's reservation of rights we think the case is not moot. See note, 39 A.L.R.2d 153, 171 (1955). Contrast Smith v. O'Brien, 146 Mass. 294, 296, 15 N.E. 645 (1888).
2. Credit for dependency benefits. Since the evidence is reported and the judge made a report of material facts, the appeal brings before us all questions of law, fact, and discretion. Whitney v. Whitney, 325 Mass. 28, 29, 88 N.E.2d 647 (1949). Under G.L. c. 208, § 37, the judge had full power to modify the support provisions of the divorce decree 'not only as to the future, but also as to arrears.' Watts v. Watts, 314 Mass. 129, 133, 49 N.E.2d 609, 612 (1943). Whitten v. Durkee, 327 Mass. 562, 564, 99 N.E.2d 748 (1951). He did not purport to modify the arrearages, however. Instead, he ruled as matter of law that in the absence of agreement the order for support was not satisfied by payments of government dependency benefits either made directly to the wife or children or made to the husband and paid over by him. We think that, in a contempt proceeding for violation of a divorce decree, ambiguities in the decree should ordinarily be resolved in favor of the alleged contemnor. Cf. Sodones v. Sodones, --- Mass. ---, 314 N.E.2d 906 (1974); a Meranto v. Meranto, --- Mass. ---, 323 N.E.2d 723 (1975). b Credit should therefore have been given, and the contempt decree must be reversed.
In other States, government dependency benefits have been credited against support orders in the absence of contrary provision in the support order. Cash v. Cash, 234 Ark. 603, 607, 353 S.W.2d 348 (1962) (social security). Horton v. Horton, 219 Ga. 177, 178, 132 S.E.2d 200 (1963) (same). Kipping v. Kipping, 186 Tenn. 247, 251, 209 S.W.2d 27 (1948) (servicemen's dependents allowance). Pishue v. Pishue, 32 Wash.2d 750, 756, 203 P.2d 1070 (1949) (Veterans Administration). Guardianship of Gardner, 220 Wis. 493, 494--495 (1936) 264 N.W. 643 (same). Cf. Fowler v. Fowler, 156 Conn. 569, 573--574, 244 A.2d 375 (1968) (). But cf. Thompson v. Thompson, 254 Ark. 881, 883, 496 S.W.2d 425 (1973) (...
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