Arsenault v. Arsenault

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Before WILKINS; WILLIAMS
• Citation: Arsenault v. Arsenault, 148 N.E.2d 662, 337 Mass. 189 (Mass. 1958)
• Decision Date: 10 March 1958
• Parties: Mary R. ARSENAULT v. Wilfred J. ARSENAULT (two cases).

Page 662

148 N.E.2d 662

337 Mass. 189

Mary R. ARSENAULT v. Wilfred J. ARSENAULT (two cases).

Supreme Judicial Court of Massachusetts, Bristol.

Argued Oct. 28, 1957.

Decided March 10, 1958.

George B. Goodman and Joel Goodman, New Bedford, for plaintiff.

Clair F. Carpenter, New Bedford, for defendant Arsenault.

Before WILKINS, C. J., and SPALDING, WILLIAMS, COUNIHAN and WHITTEMORE, JJ.

WILLIAMS, Justice.

These are two suits in equity brought by the plaintiff for an accounting by her husband of rentals received from real estate owned by them as tenants in common and of the proceeds of certain savings bank deposits and government bonds held in their joint names. In the suit concerning the rentals two occupants of the real estate were joined as defendants but it does not appear that after service there were further proceedings in reference to them. The facts have been found by a master whose reports which are the same in each case have been confirmed. We shall refer to them as if in the form of a single report.

The parties have been married thirty-two years, have three children, and have lived most of their married life on the island of Martha's Vineyard. They own two small parcels of real estate as tenants in common in Tisbury, from the rentals of which the defendant has collected $320. Of this amount he has paid to the town for taxes and water $280 and now has in his possession a balance of $40.

The bonds and savings bank accounts, which are the subject of one of these suits, were respectively purchased and opened by the defendant with money earned by him and stand in the joint names of himself and wife. In or about April, 1953, the plaintiff left the defendant because of his physical abuse and took with her a tin box containing the bonds and two savings bank books, one in New Bedford Institution for Savings and one in First Safe Deposit National Bank of New Bedford. The defendant brought a bill in equity to obtain possession of these bonds and bank books on which he obtained a restraining order enjoining his wife from disposing of them. In July of that year the defendant visited her and asked her to drop a divorce case which she had begun and to return to live with him. He promised that he would never abuse her again and told her that the money and bonds would 'belong to both equally and that they would always be that way.' Because she believed what he said, the plaintiff returned to live with him on August 18. On that day the parties with their attorneys went to the court house 'discontinued their litigation against each other and obtained the bank books and the bonds at the Court House from the wife's then attorney, [and] then returned to their home where the tin box [containing the bonds and bank books] was kept under a couch.' On November 19, 1953, the defendant 'unbeknown' to the plaintiff went to New Bedford and withdrew all the money from both accounts. He redeposited $940.48 in New Bedford Institution for Savings in his name as trustee for his wife. She learned of this a day or two later. They continued to live together until September, 1955, when after continued abuse by the defendant they finally separated. The present proceedings were instituted early in 1956.

In conclusion the master found that 'on August 18, 1953, the plaintiff acquired equal ownership with her husband in the two bank books * * * together with the bonds which were in the tin box by reason of his promise made to her to this effect, if she returned to him.' He found that on August 18, 1953, the deposits represented by the bank books amounted to $5,440.28 in First Safe Deposit National Bank and $2,245.66 in New Bedford Institution for Savings. He found the value of the bonds to be $1,800, that being the value admitted by the defendant, and no different value being established.

The master reported that at the outset of the hearing before him the attorney for the defendant 'objected to proceeding with the trial on the ground that Mr. Goodman, attorney for the plaintiff, had formerly represented the defendant in a bill in equity against his wife brought in Bristol County by the present defendant in which he claimed sole ownership of the same bank deposits and bonds. This is the same bill referred to in my report. He contended that Mr. Goodman should disqualify himself to act as the attorney for the present plaintiff because of information he had obtained from the present defendant when he represented him and that his position violated the canon of ethics of the American Bar Association. Mr. Goodman assured him he had no such information and furthermore that the present bills were not in any way predicated on any such information Mr. Goodman suggested that counsel appear before a judge of the Superior Court to determine this question, which he did but which Mr. Carpenter did not do. I then ordered the trial to proceed without further action over objection and exception taken by Mr. Carpenter. At no time during the trial did it appear that any questions addressed to the defendant by Mr. Goodman sought to elicit any such information complained of.' The defendant filed exceptions to the master's report (1) on the ground above stated, and (2) on the ground that the finding that on August 18, 1953, the plaintiff acquired equal ownership with her husband in the bank books and bonds contained a ruling of law which the master was not authorized to make. The report as above stated was confirmed and, impliedly, the exceptions were overruled.

A final decree was entered in the suit relating to the rentals from the real estate ordering the defendant to pay the plaintiff $20 with costs of $25. In the suit concerning the bonds and bank accounts a final decree was entered ordering that the defendant pay to the plaintiff $4,742.97 with interest from November 19, 1953, amounting to $1,019.74, a total of $5,762.71, with costs in the sum of $30. From each of these decrees the defendant appealed.

Although no appeals were taken from the interlocutory decrees confirming the master's reports their correctness is open for consideration upon the appeals from the final decrees. G.L.(Ter.Ed.) c. 214, § 27. Gibbons v. Gibbons, 296 Mass. 89, 4 N.E.2d 1019. There was no error in dealing with the two exceptions which were impliedly overruled by the decrees confirming the reports.

As to the first exception relating to the plaintiff's attorney it is provided by Rule 20 of the Superior Court (...