Bradford v. Bradford

• Decision Date: 03 December 1936
• Parties: BRADFORD v. BRADFORD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

296 Mass. 187

4 N.E.2d 1005

BRADFORD v. BRADFORD.

Supreme Judicial Court of Massachusetts, Plymouth.

December 3, 1936

Suit by Agnes M. Bradford against William C. Bradford for separate maintenance. From the decree, the defendant appeals.

Affirmed.

Appeal from Probate Court, Plymouth County; Poland, Judge.

E. J Campbel,, of Brockton, for appellant.

E. G Townes, of Brockton, for appellee.

QUA Justice.

This is a petition for separate support under G.L.(Ter.Ed.) c. 209, § 32, alleging that the petitioner is living apart from her husband and specifying cruel and abusive treatment as the ‘ justifiable cause.’ See Farrell v. Farrell, 262 Mass. 209, 159 N.E. 495. The evidence is not reported. The judge made findings of material facts upon which the decree is based.

The judge found that in 1932 the parties, through a trustee, entered into a valid separation agreement wherein it is recited that they had agreed to live apart and wherein the respondent agreed to pay the trustee $15 per week for the support of the petitioner and their minor daughter and the petitioner agreed to accept such payments in full settlement of any and all claims for support and maintenance. Thereafter the parties lived apart. In 1935 the respondent was in arrears in his payments. He notified the petitioner that he would reduce the payments to $7 per week and he has since paid at the reduced rate. He filed a libel for divorce against the petitioner charging desertion on the date of the separation agreement and later, at the time of the hearing of this cause, he asked that his libel be dismissed. The judge ruled that the separation agreement by implication was based upon the continuance of the marriage status. Kerr v. Kerr, 236 Mass. 353, 355, 128 N.E. 409. He found that when the respondent filed his libel for divorce and refused to continue payments according to the agreement, ‘ he repudiated the agreement and ought not now to be allowed to revive it as a bar to his wife's petition.’ The judge further ruled that the separation agreement was not a bar to this petition, but he stated that he had considered it as a part of the evidence in passing on the merits of the case.

In Wilson v. Caswell, 272 Mass. 297, 172 N.E. 251, this court, upon full consideration of the precedents, held that a separation agreement did not take away the power of the trial court to proceed in the exercise of the jurisdiction conferred upon it by statute, although such an agreement in connection with other circumstances proved might furnish a reason for refusing relief. It was there said, 272 Mass. 297, at page 302, 172 N.E. 251, 253:‘ Husband and wife cannot by contract, deprive the probate court of jurisdiction * * * or of power to consider their relation in connection with their contract and all other facts material to the issues properly before it in providing for the maintenance of wife or minor children, although the exercise of its jurisdiction may change in some respects their situation as contemplated by the contract.’ This language applies to the present petition. The judge gave to the broken agreement all the consideration to which it was entitled when he took it into account as one of the facts in the case. See, also, Kerr v. Kerr, 236 Mass. 353, 356,...