Churchill v. Churchill

• Decision Date: 16 September 1921
• Parties: CHURCHILL v. CHURCHILL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

239 Mass. 443

132 N.E. 185

CHURCHILL

v.CHURCHILL.

Supreme Judicial Court of Massachusetts, Plymouth.

Sept. 16, 1921.

Appeal from Superior Court, Plymouth County; Webster Thayer, Judge.

Suit by Ida F. Churchill against Fred O. Churchill, her husband for separate support. From an order in favor of the petitioner, respondent appeals. Reversed, and decree entered for petitioner, in accordance with the opinion.

The probate court directed the husband to pay $30 as counsel fees and $12 a week for support. The superior court on appeal by the wife, on January 3, 1921, ordered the payment of $30 as counsel fees and $17 a week, and provided that the order should be entered as of June 9, 1920.T. W. Prince, of Brockton, for appellant.

William G. Rowe, of Brockton, for appellee.

RUGG, C. J.

This is a petition by a wife against her husband for separate support under R. L. c. 153, § 33, now G. L. 209, § 32. In the probate court a decree was entered to the effect that the wife for justifiable cause was actually living apart from her husband and ordering amongst other matters that the husband pay her the sum of $30 for counsel fees and $12 each week for her support beginning with September 27, 1919. The wife appealed to the superior court. In that court she filed a motion that counsel fees be allowed to her.

There is set forth as a part of the respondent's appeal a letter from the judge to the clerk giving directions for the entry of an ‘order.’ That is no part of the record. Cressey v. Cressey, 213 Mass. 191, 99 N. E. 972;Reno v. Cotter, 236 Mass. 556, 561,129 N. E. 300. It was not a finding of the facts. Hence it does not come within the rule of Cohen v. Nagle, 190 Mass. 4, 5, 76 N. E. 276,2 L. R. A. (N. S.) 964,5 Ann. Cas. 553. It ought not to have been printed. Cohen v. Berkowitz, 215 Mass. 68, 71, 102 N. E. 124.

A copy of the docket entries in the superior court has been furnished us. It there is shown that on January 3, 1921, an order was entered to the effect that the husband pay the wife forthwith $30 for counsel fees and $17 per week, the first payment to be made June 13, 1920, concluding with the words: ‘This order entered as of June 9, 1920.’ In actions at law the docket entries constitute the record until the full and extended record is made up. Pruden v. Alden, 23 Pick. 184, 187,34 Am. Dec. 51;Read v. Sutton, 2 Cush. 115, 123;Washington National Bank v. Williams, 190 Mass. 497, 503, 77 N. E. 383.

This is a probate appeal. In such cases the practice is according to equity so far as practicable and applicable. Ensign v. Faxon, 229 Mass. 231, 233, 118 N. E. 337;G. L. 215, § 21. In equity a docket entry is not a final decree. Day v. Mills, 213 Mass. 585, and cases collected at 587, 100 N. E. 1113. Compare Merrill v. Beckwith, 168 Mass. 72, 46 N. E. 400, and Snell v. Dwight, 121 Mass. 348. The better and more satisfactory practice respecting interlocutory matters is that a decree be entered, but orders of that nature have been held subject to review on appeal when the case is otherwise ripe for consideration by the full court. Nelson Theatre Co. v. Nelson, 216 Mass. 30, and cases cited at 33, 102 N. E. 926. That practice has never been established as to decrees finally disposing of the controversy on its merits. A final decree is necessary to bring the suit to an end. Suits in equity cannot properly be brought before this court as of right upon any appeal except from a final decree. A simple order, however, decisive in its terms, is not enough. Hutchins v. Nickerson, 212 Mass. 118, 120, 98 N. E. 791. See Weil v. Boston Elevated Railway, 216 Mass. 545, 104 N. E. 343;G. L. c. 214, §§ 19, 26. An order for final disposition of the case on its merits imports by its very nature that it is to be followed and made effective by the entry of a formal final decree, but that it is not itself such decree.

The mere title, whether order or decree, is of no consequence. The substance is the decisive thing. Frequently the ultimate decision of cases of this sort has been termed an ‘order.’ See, for example, Bigelow v. Bigelow, 120 Mass. 320,Bucknam v. Bucknam, 176 Mass. 229, 57 N. E. 343,49 L. R. A. 735. The statute conferring this jurisdiction refers to the manifestation of the decision of the court as an ‘order,’ although in the last clause the words ‘new order or decree’ occur. G. L. c. 209, § 32. Commonly an order of a court is shown by a docket entry and not by a separate and formal decree.

A decision for the payment of a fixed sum of money already due to the wife for past support is now regarded as final under the full faith and credit clause of the federal constitution, although an order for future support, being ordinarily liable to modification by the court at any time upon proper cause shown, is not a final order for the payment of a fixed sum. Page v. Page, 189 Mass. 85, 75 N. E. 92,4 Ann. Cas. 296;Wells v. Wells, 209 Mass. 282, 95 N. E. 845,35 L. R. A. (N. S.) 561;White v. White, 233 Mass. 39, 123 N. E. 389;Sistare v. Sistare, 218 U. S. 1, 30 Sup. Ct. 682, 54 L. Ed. 905, 28 L. R. A. (N. S.) 1068, 20 Ann. Cas. 1061.

Weekly payment for separate support is a subject which inherently cannot be disposed of finally as to the future. Circumstances may change so as to require modification. Smith v. Smith, 190 Mass. 573, 77 N. E. 522,5 Ann. Cas. 939. A decree on that point is for the time being decisive upon the parties. Such an order has been called ‘a final adjudication of all matters stated in the petition. * * *’ Harrington v. Harrington, 189 Mass. 281, 283, 75 N. E. 632, 633.

The docket entry in the case at bar contains all the matters of substance requisite for a final decree and is complete in detail.

With some hesitation we hold that appeal lies from such an order. G. L. c. 231, § 96. It would be much better practice, however, to enter a final decree both in form and substance in cases of this sort.

The order for counsel fees was interlocutory in its nature. It was within the power of the superior court. R. L. c. 153, § 35; chapter 152, § 14. It cannot be said as matter of law on this record that the power was abused. That part of the order may stand.

The order for the payment of $17 each week was made nunc pro tunc to take effect about 7 months before its actual entry. It was provided in R. L. c. 162, § 19, in force at the time of the decree in the probate court and the appeal to the superior court (continued in force under G. L. c. 281, § 4, as to the case at bar notwithstanding St. 1919, c. 274, now G. L. c. 215, § 9 et seq.), that a decree of the probate court in such a proceeding ‘shall have effect, notwithstanding an appeal, until otherwise ordered by a justice of the superior court.’ It follows that during the period covered by the nunc pro tunc order the respondent was actually liable for the payments required by the probate court decree. Rice v. Rice, 184 Mass. 488, 491, 69 N. E. 319. That court had the usual power to enforce its decree pending action in the superior court. For aught that appears these payments have been made or...