Buchanan v. Buchanan

• Decision Date: 04 December 1967
• Citation: 231 N.E.2d 570,353 Mass. 351
• Parties: June W. BUCHANAN v. William J. BUCHANAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 570

231 N.E.2d 570

353 Mass. 351

June W. BUCHANAN v. William J. BUCHANAN.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Nov. 7, 1967.

Decided Dec. 4, 1967.

Harold Katz, Boston (David H. Lamson, Boston, with him), for respondent.

No argument or brief for petitioner.

Before WILKINS, C.J., and WHITTEMORE, CUTTER, KIRK, SPIFGEL and REARDON, JJ.

REARDON, Justice.

By petition filed on June 24, 1966, the petitioner sought in the Norfolk Probate Court under G.L. c. 208, § 29, modification of a divorce decree entered on April 28, 1965, in the Circuit Court, in Equity, for St. Clair County, Alabama. The Alabama decree incorporated a separation agreement dated March 17, 1965, between the parties which, inter alia, provided $15 a week for the support and maintenance of each of their two children. The petition alleged that this sum of $15 a week ordered paid by the Alabama court for each of the two children was inadequate, and that the circumstances had changed in that the children required more funds for their support than at the time of the entry of the Alabama decree. Upon the petition a decree entered making certain changes in the arrangements on custody of the children and ordering the respondent to pay $70 a week for their support. He appealed from that decree and from a decree overruling and dismissing his plea in bar which set up the separation agreement as a bar to any change in support payments for the children.

1. As argued by the respondent, we hold that G.L. c. 208, § 29, requires that prior to modification of a foreign decree a showing of material change in circumstances is required. This showing is similar to that which is necessary under G.L. c. 208, § 28, which has reference to decrees entered in this Commonwealth. Hinds v. Hinds, 329 Mass. 190, 107 N.E.2d 319. There is no distinction in the requirements of these two sections.

2. We consider first the departure from the terms of the separation agreement relative to the amounts there stipulated to be paid weekly for the support of the children. It is clear that provisions for their support may be revised from time to time 'as the circumstances of the parents and the benefits of the children may require.' G.L. c. 208, § 28; Whitney v. Whitney, 325 Mass. 28, 31, 88 N.E.2d 647; Perkins v. Perkins, 225 Mass. 392, 397, 398, 114 N.E. 713; Heard v. Heard, 323 Mass. 357, 82 N.E.2d 219. That there was a separation agreement relative to the care and maintenance of children did not oust the jurisdiction of the Probate Court under G.L. c. 208, §§ 28 and 37, over continuing problems of their support. Wilson v. Caswell, 272 Mass. 297, 301--302, 172 N.E. 251; Kates v. Kates, 347 Mass. 783, 200 N.E.2d 256. Resolution of these questions rests largely in the discretion of the probate judge after he has given due consideration to all the facts. See Coe v. Coe, 313 Mass. 232, 235, 46 N.E.2d 1017. These include the needs of the children, the financial status of the former husband, and the station in life of the respective parties. Topor v. Topor, 287 Mass. 473, 475, 192 N.E. 52. ...