Cochrane v. Cochrane

• Decision Date: 30 June 1939
• Citation: 22 N.E.2d 6,303 Mass. 467
• Parties: COCHRANE v. COCHRANE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

303 Mass. 467
22 N.E.2d 6

COCHRANE
v.
COCHRANE.

Supreme Judicial Court of Massachusetts, Norfolk.

June 30, 1939.

Suit for divorce by Robert C. Cochrane against Louise C. Cochrane wherein the libelee filed a motion to dismiss the libel. From a decree allowing the motion and dismissing the libel, libelant appeals.

Reversed.

[22 N.E.2d 7]

Appeal from Probate Court, Norfolk County; McCoole, Judge.
A. A. Tepper, of Boston, for appellant.

E. J. Flavin, and I. Cohen, both of Boston, for appellee.

COX, Justice.

The libel for divorce in this case, which was filed on July 8, 1938, alleged that the libellant had always been faithful to his marriage vows, but that the libellee, on or about January 10, 1931, and on other occasions, had been guilty of cruel and abusive treatment toward the libellant. It also alleged that a ‘petition for separate support between said parties to this libel was filed in the Probate Court * * * by the libellee * * *.’ The libellee filed a motion to dismiss the libel, in which she alleged that the decree of the Probate Court on her petition for separate maintenance, entered on February 6, 1934, that she was living apart from her husband for justifiable cause, was still in effect and constituted a bar to the libel for divorce for the cause of cruel and abusive treatment; that the acts of cruelty alleged in the libel took place before the entry of said decree; that by reason thereof the libellant was foreclosed from alleging that he had been faithful to his marriage vows; and that said decree required a finding that she had been faithful to her marriage vows and that the libellant had been guilty of such conduct as warranted a finding that he had not been faithful to his. At the hearing upon this motion the libellee offered in evidence copies of her petition for separate support, the decree, and docket entries in that proceeding. No other evidence was presented. In the course of the arguments at the hearing upon the motion, counsel for the libellant stated that at the hearing on the separate support

[22 N.E.2d 8]

petition no evidence was taken. Counsel for the libellee replied that he was not in a position to accept this statement, whereupon the judge said: ‘I can say that either there was evidence taken or else both sides were represented by counsel and agreed to a decree.’ A ‘commissioner’ was appointed to take the testimony under G.L. (Ter.Ed.) c. ‘215, s. 18, and Sec. 12,’ all of which is reported. The judge filed a report of material facts and a decree was entered allowing the motion to dismiss and dismissing the libel. The libellant appealed.

A motion to dismiss may be proper in a divorce proceeding. Rule 37 of the Probate Court. Rule 25 of the Superior Court (1932). But a motion to dismiss must be based upon matter appearing on the record. Brotkin v. Feinberg, 265 Mass. 295, 298, 164 N.E. 85. See Schmidt v. Schmidt, 280 Mass. 216, 182 N.E. 374. The allegations in the libel in the case at bar as to the petition for separate support are not sufficient to show that the issue raised by the libel is barred under the doctrine of res judicata. It follows that the motion to dismiss was an improper pleading, but it set out a single fact or point which, if established, will defeat the libel. Res judicata as a defence is properly the subject of a plea in bar which, although abolished in actions at law, Gallo v. Foley, Mass., 11 N.E.2d 803, is recognized in equity and divorce practice. Edgerly v. Edgerly, 112 Mass. 53;Whitney v. Whitney, Mass., 13 N.E.2d 401, and cases cited. The so called motion to dismiss, therefore, is treated as a plea in bar in accordance with its true nature. Gallo v. Foley, Mass., 11 N.E.2d 803, and cases cited. Charles I. Hosmer, Inc. v. Commonwealth, Mass., 19 N.E.2d 800;Johnson v. Johnson, Mass., 21 N.E.2d 224.

The decree dismissing the libel recited that, ‘It appearing to the Court * * * that a decree * * * was entered on February 6, 1934, adjudging that the libellee herein was actually living apart from the libellant herein for justifiable cause and * * * that the said decree is still in full force and effect; that the parties have never lived together since the entry of said decree; and that the cause of divorce alleged by the libellant occurred prior to the entry of said decree. The within motion is therefore allowed, and it is decreed that the libel for divorce be dismissed.’ In the report of material facts the judge stated that at the hearing on the so-called motion no evidence was offered by the libellant with respect ‘to the matters that were before me or the evidence that was considered by the Court at the hearing upon the separate support petition * * * nor was any evidence herein offered tending to show that no evidence was offered or statement made that the matter of cruel and abusive treatment was not considered or at least not before the Court in the separate support hearing.’ The report concludes: ‘In the absence of proof of evidence from which a contrary finding would be warranted I find that it did not appear that the question of cruel and abusive treatment was not before the Court or not considered by me in entering the decree in the separate support proceedings and in the face of alleged acts of cruel and abusive treatment long ante-dating the decree of Feb. 6, 1934, I allowed the libellee's motion to dismiss and dismissed the libel for divorce.’

In respect to subjects of which the Probate Court has jurisdiction, and upon parties brought within its jurisdiction, a decree of that court, like a judgment in other courts, is conclusive. ‘The decree introduced at the trial, being between the same...