Baird v. Baird

• Decision Date: 01 April 1942
• Citation: 311 Mass. 329,41 N.E.2d 5
• Parties: BAIRD v. BAIRD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

311 Mass. 329

41 N.E.2d 5

BAIRD

v.BAIRD.

Supreme Judicial Court of Massachusetts, Middlesex.

April 1, 1942.

Libel by Grace L. Baird against Arthur E. Baird for divorce, wherein, after a decree nisi granting a divorce had become absolute, libelant filed a petition for modification thereof so as to provide for alimony. From decrees awarding alimony pendente lite, denying libelee's motion to dismiss, and awarding alimony in a lump sum, libelee appeals.

Decrees awarding alimony pendente lite and denying motion to dismiss affirmed, and decree awarding alimony in a lump sum modified and as modified affirmed.Appeal from Probate Court, Middlesex County; Leggat, Judge.

Before FIELDS, C. J., and DONAHUE, QUA, and RONAN, JJ.

H. M. Leen, of Boston, for libellee.

J. J. Donahue and E. W. Dullea, both of Boston, for libellant.

FIELD, Chief Justice.

Grace L. Baird of Belmont, herein referred to as the libellant, brought in the Probate Court for the county of Middlesex a libel for divorce against her husband, Arthur E. Baird, alleging that he was of parts unknown. Notice by publication and by registered mail to the last known residence of the libellee was ordered. Publication was had as ordered, but the registered letter sent in accordance with the order was returned unclaimed and unopened. A decree nisi granting a divorce was entered on June 19, 1935, containing no provision for alimony. This decree became absolute. See G.L.(Ter.Ed.) c. 208, § 21, as amended by St. 1934, c. 181, § 1.

The libellant on February 13, 1941, filed in the Probate Court for the county of Middlesex a so called petition for modification of said decree of divorce entered June 19, 1935, against Arthur E. Baird, ‘formerly of parts unknown now commorant in Boston,’ wherein the libellant prayed that said decree ‘be modified and that the said Arthur E. Baird [herein referred to as the libellee] be ordered to pay your petitioner alimony.’ A citation issued upon the petition returnable March 10, 1941, by which it was ordered that notice of this proceeding be given by delivering a copy of such citation to the said Arthur E. Baird. Service of such citation was made by delivery of a copy thereof in hand to the libellee. On July 7, 1941, an order was entered, pending the final allowance of the petition or the further order of the court, that the libellee ‘pay to his former wife * * * Grace L. Baird toward her support the sum of one hundred dollars on each and every Saturday hereafter, beginning with the twelfth day of July 1941.’ The libellee appealed from this order. On October 2, 1941, the libellee moved that the libellant's ‘petition for modification’ of the decree of June 19, 1935, be dismissed. On the same day the motion was denied after hearing. The libellee appealed. On October 29, 1941, a decree was entered, after hearing, that ‘said decree dated June 19, 1935, be so modified that said libellee pay to said libellant forthwith the sum of twenty-five thousand dollars in gross, in lieu of all alimony, past, present and future, and except as herein modified said decree be affirmed.’ The libellee appealed.

The libellee contends that the Probate Court was without power to enter either the decree of July 7, 1941, awarding alimony pendente lite, or the decree of October 29, 1941, purporting to modify the decree of divorce of June 19, 1935, and awarding alimony to the libellant in a lump sum.

1. In substance the petition is a petition for alimony. The right of a divorced wife to alimony is governed by statute, subject to jurisdictional requirements. Gediman v. Cameron, 306 Mass. 138, 140, 27 N.E.2d 696, and cases cited. G.L.(Ter.Ed.) c. 208, § 34, provides: ‘Upon a divorce, or upon petition at any time after a divorce, the court may decree alimony to the wife, or a part of her estate, in the nature of alimony, to the husband.’ G.L. (Ter.Ed.) c. 208, § 37, provides: ‘After a decree for alimony or an annual allowance for the wife or children, the court may, from time to time, upon the petition of either party, revise and alter its decree relative to the amount of such alimony or annual allowance and the payment thereof, and may make any decree relative thereto which it might have made in the original suit.’

The stating part of the petition indicates that the petition was brought under G.L.(Ter.Ed.) c. 208, § 34. It is alleged therein that under the ‘decree [of divorce] dated June 19, 1935, no provision was made for alimony,’ thus excluding the petition from the scope of § 37, which applies only ‘after a decree for alimony’ and provides for revision or alteration of a decree ‘relative to the amount of such alimony.’ And the prayer of the petition ‘that the said decree of June 19, 1935 be modified and that the said Arthur E. Baird be ordered to pay your petitioner alimony’ is broad enough to include relief by a separate decree for alimony, though asking also for modification of the decree of divorce of June 19, 1935. Though the petition is described as a ‘petition for modification,’ it is to be treated in accordance with its essential substance. E. S. Parks Shellac Co. v. Jones, 265 Mass. 108, 110, 163 N.E. 883. Its scope is not to be regarded as limited by its title. We treat the petition, therefore, as a petition for almony ‘at any time after a divorce’ under G.L. (Ter.Ed.) c. 208, § 34, and not as a petition to ‘revise and alter’ a decree ‘relative to the amount of such alimony’ under § 37.

2. The facts disclosed by the record bring this petition within the scope of G.L. (Ter.Ed.) c. 208, § 34, as a ‘petition [for alimony] at any time after a divorce.’ Upon the original libel for divorce personal service was not made upon the libellee, who was then ‘of parts unknown,’ and the court, therefore, was without jurisdiction in that suit to award alimony to the libellant. Parker v. Parker, 211 Mass. 139, 141, 97 N.E. 988;Schmidt v. Schmidt, 280 Mass. 216, 220, 221, 182 N.E. 374. Nevertheless, the court, in the language of the Parker case, 211 Mass. page 144, 97 N.E. page 990, ‘had jurisdiction, when a personal service was made upon the libelee on his return to this commonwealth, to deal with a petition for alimony against him, although at the time of the granting of the original libel it would have had no personal jurisdiction over him.’ The court, therefore, had jurisdiction of the present petition. The...