Allen v. Allen

• Decision Date: 03 July 1950
• Citation: 93 N.E.2d 554,326 Mass. 214
• Parties: ALLEN v. ALLEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

326 Mass. 214

93 N.E.2d 554

ALLEN v. ALLEN.

Supreme Judicial Court of Massachusetts, Plymouth.

July 3, 1950

Argued May 4, 1950.

T. W. Prince Brockton, for petitioner.

S. O. Ball Provincetown, for respondent.

Before QUA, C. J and RONAN, WILLKINS, SPALDING and WILLIAMS, JJ.

WILLIAMS, Justice.

This is an appeal by the libellee from an adverse decree on her petition for modification of an eariler decree pertaining to the custody of the children of the libellant and libellee. The parties were married on July 23, 1941. Three children were born of the marriage, Penelope Diane in 1942, Perry Douglas in 1943 and Dana Crouse in 1945. A decree nisi for divorce on a libel alleging cruel and abusive treatment was awarded the libellant on June 11, 1946. Custody of Penelope was awarded to the paternal grandmother and custody of the two boys to the maternal grandmother, the libellant being ordered to pay $35 per month for the support and maintenance of the two boys. The decree was modified on July 7, 1948, on petition of the libellant, and upon agreement of the parties custody of Penelope was given to the libellant, such custody to be exercised at the libellant's home in Windsor, Vermont, where he was teaching school. It was provided that the libellee should have the right to visit the child at all reasonable times and to have the child visit with her from December 24, 1948, to January 5, 1949, and thereafter during the entire month of July of each year. The present petition for further modification of the original decree as modified prays for the custody of all three children and for contribution to their support by the libellant. On this petition a decree was entered on September 30, 1949, which awarded the custody of the two boys to the mother and left the custody of Penelope with the father, permission being given to exercise such custody in Glens Falls, New York. No order was made for support of the boys, and the libellee's prayer for their support was therefore impliedly denied.

Although the evidence is reported, there is no report of material facts. The judge's decision, however, imports a finding of every fact supported by the evidence and essential to his conclusion. Grandell v. Short, 317 Mass. 605, 59 N.E.2d 274.

The case presents the not unusual situation of two young people of college age married during the war years and later divorced, for a cause very likely arising from mutual incompatibility. During the period of their marriage the libellant spent two or more years in the armed services. Since the divorce each has remarried, apparently happily. The libellant is now living at Glens Falls, New York, where he is in training for the position of special agent with an insurance company, receiving about $2,445 per annum after deductions for taxes, social security, Blue Cross and insurance. The libellee lives in Provincetown where her husband received a salary of approximately $3,600. The libellee has recently earned $396 by painting and selling lamp shades during the summer. She and her husband wish to have all three children with them. The libellant does not desire the custody of the two boys, but with his wife wishes to retain the custody of the girl. The home of each party is of a character suitable for the upbringing of a child or children. The libellant and his wife and the libellee and her husband appear to be fit persons to look after the children. Richards v. Forrest, 278 Mass. 547, 552, 180 N.E. 508.

The practice upon a probate appeal of this nature 'is that questions of fact as well as of law are brought before this court, whose duty is to examine the evidence and decide the case according to its judgment, giving due weight to the finding of the trial judge.' Hersey v....