Brown v. Brown
| Decision Date | 10 January 1916 |
| Citation | 111 N.E. 42,222 Mass. 415 |
| Parties | BROWN v. BROWN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal and Exceptions from Superior Court, Suffolk County; Hugo A. Dubuque, Judge.
Petition by Elizabeth W. Brown against her former husband, Maybin W. Brown, to obtain alimony. Petition dismissed, and petitioner appeals and excepts. Exceptions overruled.
G. Harvey Hull, of Boston, for petitioner.
Jos. F., Jas. E. & Daniel T. O'Connell, of Boston, for respondent.
The petitioner, who was the former wife of the respondent, seeks in this proceeding to obtain alimony.
On May 12, 1911, a decree nisi for divorce was entered in favor of the respondent against the petitioner for desertion. Before the decree became absolute the respondent promised in writing to pay this petitioner $9 a week ‘as long as she lived or until she was remarried.’ He carried out the promise for several years, but for some months before the filing of this petition he failed to make the payments as they became due, and for a few weeks before the petition was filed no payments had been made.
Since the decree of divorce became absolute this respondent has married another woman who remains his wife and with whom he is now living.
This is the first petition for alimony that ever has been brought by the petitioner.
At the hearing upon this petition there was evidence to show that the respondent was receiving twenty dollars a week for his services and that his expenses were twenty-two dollars a week; that the difference was made up by the earnings of his present wife; that he had no other source of income; that he had saved no money, and that his failure to keep up the payments under the promise made to his former wife was due to the fact that an income he had formerly received had been cut off; that within a period of a year or eighteen months, ‘he had prolonged ill health; and that his present wife had contributed to the last installment or two paid under the written promise aforesaid.’
The petitioner requested the court to rule that ‘The fact that the respondent since the divorce has incurred new matrimonial obligations with respect to another wife has no bearing upon, and should not be considered in a petition for alimony, brought by a former wife, in determining the amount of such alimony.’
The judge of the Superior Court, before whom the petition was heard, refused the request, filed a memorandum of his findings and ordered that the petition be dismissed. The memorandum is as follows:
‘I find as a fact in this case that the respondent is not receiving as much as he needs to support himself and pay a part of the necessities of life for himself and his second wife, and I therefore find for the respondent and order the petition dismissed.’
[1] This memorandum, properly construed, contains findings of fact and cannot be regarded as a ruling of law. Alimony generally means an allowance to a wife for the support of herself and children out of her husband's estate either during the pendencyof a libel for divorce, or at its termination in favor of the petitioner. Bucknam v. Bucknam, 176 Mass. 229, 230, 57 N. E. 343,49 L. R. A. 735.
In this Commonwealth it is provided by R. L. c. 152, § 30, that:
‘Upon a divorce, or upon petition at any time after a divorce, the Superior Court may decree alimony to the wife, or a part of her estate, in the nature of alimony, to her husband.’
The theory of the law is that an allowance of alimony is for the support and maintenance of the wife and of such children as may be committed to her care and custody. Smith v. Smith, 190 Mass. 573, 77 N. E. 522,5 Ann. Cas. 939;Graves v. Graves, 108 Mass. 314;Burrows v. Purple, 107 Mass. 428;Holbrook v. Comstock, 16 Gray, 109.
In the case last cited it was said that:
‘Alimony is not considered to be the separate property of the wife; but it is that portion of the husband's estate which is allowed her for her present...
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...v. Stuckek, 1928, 249 Ill.App. 598;McKey v. Willett, 248 Ill.App. 602;Kraft v. Kraft, 193 Iowa 602, 187 N.W. 449;Brown v. Brown, 222 Mass. 415, 111 N.E. 42;Baird v. Baird, 1942, 311 Mass. 329, 41 N.E.2d 5;White v. Shalit, 1938, 136 Me. 65, 1 A.2d 765;Bickle v. Bickle, 1936, 196 Minn. 392, 2......
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Stefonick v. Stefonick
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