O'Brien v. O'Brien

• Decision Date: 03 April 1950
• Citation: 91 N.E.2d 775,325 Mass. 573
• Parties: O'BRIEN v. O'BRIEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

325 Mass. 573

91 N.E.2d 775

O'BRIEN v. O'BRIEN.

Supreme Judicial Court of Massachusetts, Norfolk.

April 3, 1950

Argued Dec. 9 1949.

E Fleishman, Boston, H. S. Avery, Boston, for petitioners libellee.

D. A. Weiss Boston, for respondent, libellant.

Before QUA, C. J., and LUMMUS, RONAN, WILKINS, SPALDING, WILLIAMS and COUNIHAN, JJ.

COUNIHAN, Justice.

Material facts are as follows. On February 1, 1930, the respondent married the petitioner and there was one son born of this marriage. On July 7, 1942, the respondent obtained a divorce from the petitioner for cruel and abusive treatment and gross and confirmed habits of intoxication caused by the voluntary and excessive use of intoxicating liquor, and there was a decree that the respondent furnish suitable support, maintenance and clothing to the petitioner until further order of the court and the care and custody of the minor child was awarded the respondent. On May 27, 1946, this decree was modified by striking out the provision for suitable support, maintenance and clothing, and the respondent was ordered to pay the petitioner $6 a week. On March 12, 1947, on the petition of the petitioner the original decree was further modified by ordering the respondent to pay the petitioner $10 a week until October 1, 1947, when payments were to cease, with a modification relative to the custody of the minor child not here material. The petitioner 'is or has been a chronic alcoholic and as such has been a patient and inmate at various institutions public and private.' The decree of March 12, 1947, was entered in the hope that the petitioner would rehabilitate herself, but this hope was not realized and probably never can be, due to almost certain emotional outbreaks on the part of the petitioner. The petitioner had a mental psychosis which at times caused violent and emotional disturbances, and there was medical opinion that these psychotic conditions rendered her unfit for sustained employment. The prognosis was unfavorable. After the decree of March 12, 1947, the petitioner suffered additional psychotic attacks and from July 25, 1947, until May 10, 1948, was confined in a public mental institution. Since her release she has had three attacks of a psychotic nature and would have been institutionalized if accommodations were available. The same conditions existed at the time of the hearing on the present petition as existed at the hearing preceding the decree of March 12, 1947, in so far as the physical and mental condition of the petitioner was concerned. The amended report of material facts shows that the petitioner had no funds or financial resources available for her support; that she had become the recipient of $11 a week from public charity; and that she had incurred obligations approximating $500 and was in further need of medical care. The respondent had remarried and a child was born of that marriage. His net income, for 1948 after paying his income tax and payments of $1,400 for education and $350 for personal expenses of the son by his marriage to the petitioner, was $4,442.66. He also had a trust fund of approximately $2,000 for the education of this son. The son was nineteen years old and a student in a private preparatory school. In view of the circumstances the judge did not feel that the respondent should any longer be required to support the petitioner and dismissed her petition on April 28, 1949.

Because the evidence was not reported we must accept the facts found by the judge in his report, unless they are inconsistent with other facts found, but the appeal brings before us all questions of law and discretion. Quigley v. Quigley, 310 Mass. 415, 416, 38 N.E.2d 624; Turner v. Morson, 316 Mass. 678, 681, 57 N.E.2d 18. We have frequently affirmed the principle that the amount of alimony to be awarded rests to a considerable extent in the discretion of the judge, after a consideration of all the facts, including the needs of the wife, the financial worth of the husband, the station in life of the parties and their mode of living, in order that a just and reasonable allowance may be made for the support of the wife. In the great variety of circumstances that are presented in cases involving the question of alimony, no inflexible rule can be formulated. It is no bar to a decree for alimony that the husband has remarried. The power to modify is broad and general and a decree may be changed from time to time to meet changing conditions of the parties so as to make fair and reasonable provision for support. Whitney v. Whitney, 325 Mass. 28, 30-31, 88 N.E.2d 647, and cases there cited.

While it is true that the question of alimony rests to a considerable extent in the discretion of the judge, we are not bound by his conclusion if we arrive at a different result upon consideration of the...