Coe v. Coe

• Decision Date: 30 October 1946
• Citation: 320 Mass. 295,69 N.E.2d 793
• Parties: COE v. COE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

320 Mass. 295

69 N.E.2d 793

COE

v.COE.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 30, 1946.

Proceeding by Katharine C. Coe against her husband, Martin Van Buren Coe, for contempt in failing to comply with a decree awarding petitioner a specified sum per week for her separate support and for modification of such decree, in which respondent filed a petition to revoke the decree. From decrees modifying the support decree, awarding petitioner counsel fees, and dismissing the petition for revocation, respondent appeals.

Decree dismissing petition for revocation affirmed, decree modifying support decree reversed, and decree for costs and expenses affirmed.Appeal from Probate Court, Worcester County; Stapleton, Judge.

Before FIELD, C. J., and QUA, DOLAN, WILKINS, and SPALDING, JJ.

N. Fusaro, of Worcester, for petitioner.

S. Perman, and G. H. Mason, both of Worcester, for respondent.

WILKINS, Justice.

The marital controversies between Katharine C. Coe and Martin Van Buren Coe (hereinafter referred to as Mrs. Coe and Mr. Coe, respectively) reach this court for the third time. In 313 Mass. 232, 46 N.E.2d 1017, we affirmed a decree of the Probate Court of Worcester County, dated March 25, 1942, awarding Mrs. Coe $35 a week for her separate support. On May 22, 1943, Mrs. Coe filed a petition for contempt against Mr. Coe for failure to comply with that decree, and on August 30, 1943, she filed a petition (amended October 21, 1943) for modification of that decree. To the petition for modification Mr. Coe filed a plea in bar based upon certain Nevada divorce proceedings. On September 7, 1943, he filed a petition to revoke the separate support decree. In 316 Mass. 423, 55 N.E.2d 702, because Mrs. Coe had been denied the right to introduce evidence to show that the Nevada court did not have jurisdiction and that there had been a violation of G.L. (Ter.Ed.) c. 208, § 39, we reversed decrees dismissing her petitions and a decree allowing Mr. Coe's petition to revoke, and the rescript ordered the cases ‘to stand for hearing in conformity with the opinion.’ The rescript interpreted in the light of the opinion (E. Kronman, Inc., v. Bunn Bros., Inc., 265 Mass. 549, 552, 163 N.E. 711) did not mean that only the judge who had heard the cases could conduct the hearing. The words ‘further hearing’ were not used, as had been done in Woodworth v. Woodworth, 271 Mass. 398, 400, 171 N.E. 431; see Id., 273 Mass. 402, 406, 407, 173 N.E. 578. Even those words, ‘unless expressly limited, ordinarily import a new trial of those matters as to which the new or further hearing is to be had.’ C. W. Hunt Co. v. Boston Elevated Railway Co., 217 Mass. 319, 320, 321, 104 N.E. 728, 729.

After rescript the three petitions, together with a petition of Mrs. Coe for counsel fees and expenses, were heard by a judge of probate of Hampden County designated under G.L. (Ter.Ed.) c. 217, § 8, as appearing in St.1937, c. 408, § 5. On May 21, 1945, decrees were entered dismissing the petition for contempt; modifying the decree of March 25, 1942, by ordering Mr. Coe to pay for the support of Mrs. Coe $5,000 forthwith and $100 weekly; requiring Mr. Coe to pay to Mrs. Coe $1,000 for her use in maintaining her petition for modification and in her defence in the matter of the petition for revocation; and dismissing the petition for revocation. On May 31, 1945, Mr. Coe appealed from the decree for modification, the decree for $1,000 ‘for counsel fees,’ and the decree dismissing the petition for revocation. The judge filed a report of the material facts found by him. G.L. (Ter.Ed.) c. 215, § 11. The evidence is reported. Shattuck v. Wood Memorial Home Inc., 319 Mass. 444, 445, 446, 66 N.E.2d 568;Rubinstein v. Rubinstein, 319 Mass. 568, 569, 66 N.E.2d 793.

1. We first consider a contention of Mr. Coe that the judge of probate of Hampden County who entered the decrees was without power and authority to act in these cases. On July 7, 1944, the first judge of probate of Worchester County (who was not the judge who theretofore had heard the cases) made the following designation under G.L. (Ter.Ed.) c. 217, § 8, as appearing in St.1937, c. 408, § 5: ‘I request Honorable Thomas H. Stapleton, judge of probate, in and for the county of Hampden, to perform part of the judicial duties of this court by holding a simultaneous session of this court at the court house in Worcester, at times and places to be designated by said aforesaid judge of probate, by reason that neither of the judges of probate are available to hear said case.’ In view of later occurrences it is not clear what was meant by ‘said case.’ On July 10, 1944, there was a hearing, hereinafter referred to, concerning the present cases before the acting judge of probate previously designated. Although the request of July 7, 1944, had nothing to do with these cases, through error the certification of designation of the judgment of probate of Hampden County as acting judge was entered under the docket number of these cases. This was later changed so that the designation was docketed with a new number under the name of the judge designated. On October 19, 1944, Mr. Coe filed a motion that the designation of the judge of probate of Hampden County to hear the cases be vacated. There were numerous grounds assigned for the motion, the chief of which was that the hearing should be before the judge of probate of Worcester County who had previously heard the cases. On January 4, 1945, the motion was denied by the first judge of probate of Worcester County, ‘it appearing that the certification referred to was entered on the docket in this case by mistake and inadvertence and has now been expunged.’ On January 18, 1945, the judge who had originally heard the cases assigned them for hearing before the judge of probate of Hampden County who had been designated as set forth above. On January 22, 1945, Mr. Coe filed a motion to revoke the assignment. On January 31, 1945, the judge who had originally heard the cases denied the motion by a decree which contained in substance the following findings: While Judge Wahlstrom, who had heard all previous matters, was ‘away on summer vacation and thus unavailable,’ the designation was made of Judge Stapleton, who sat on July 10, 1944, and heard and decided ‘four preliminary matters.’ At that hearing ‘various matters concerning the case where discussed and counsel submitted documents to said court so that he might become familiar with what had transpired in the case, and a discussion was had regarding a continuance of the hearing. * * * [P]ractically one entire day was devoted to matters concerning said case. * * * [B]oth Honorable Thomas H. Stapleton and counsel for both parties believed that they had commenced hearings in said case and that the matter was therefore continued generally for further hearing before Honorable Thomas H. Stapleton. This court therefore finds that said case is now before said Honorable Thomas H. Stapleton for hearing on all matters pending.’ Mr. Coe appealed.

That the foregoing findings were not erroneous is clear from an examination of the stenographic report of the proceedings on July 10, 1944, contained in the record, which does not sustain the numerous contentions of Mr. Coe. It cannot rightly be said that the cases were not properly before the judge of probate of Hampden County on February 5, 1945, and later dates, when they were heard to a conclusion on the merits. Because of what had occurred on July 10, 1944, when the original judge was unavailable, even though no witnesses were called, it was of no consequence that he was available on February 5, 1945, and later dates. A contrary ruling was not required by reason of proceedings (naturally not to be found in this record) on January 11, 1945, before a single justice of this court. We hold to be unfounded not only the argument that the judgment of probate of Hampden County was selected by counsel for Mrs. Coe to hear the cases, but also the contention that there was impropriety in the assignment of that judge to hear these cases. There was compliance in all respects with G.L. (Ter.Ed.) c. 217, § 8, as appearing in St.1937, c. 408, § 5.

2. We next consider the decree dismissing Mr. Coe's petition for revocation of the separate support decree of March 25, 1942. The petition contains allegations that ‘by virtue of a decree dated September 19, 1942, duly entered in the First Judicial District of the State of Nevada the said Katharine C. Coe was awarded a judgment dissolving the marriage between the said Katharine C. Coe and your petitioner and they are no longer husband and wife,’ and that since the decree ‘the conditions and relations between your petitioner and said Katharine C. Coe have become so materially altered as to require revocation or modification of said decree.’ There are prayers that the parties be adjudged to be ‘no longer husband and wife,’ that the petition for contempt be dismissed, and for such further relief as the court ‘deems equitable.’ Among the material facts found by the judge are the following: The parties were married in New York, New York, on May 15 or May 16, 1934, at which time they were residents of, and domiciled in, Worcester. They thereafter resided in Worcester. In May, 1942, Mr. Coe left Worcester and went to New York city, where he had had an apartment since 1940, but no domicil. He left New York with one Dawn Allen, and on June 10, 1942, arrived in Reno, Nevada. On July 27, 1942, he filed a complaint for divorce in the First Judicial District Court of the State of Nevada in and for the County of Ormsby. Following service of the summons upon her in Worcester Mrs. Coe on August 25, 1942, arrived in Reno. She lived for a few days at a hotel and then hired a room elsewhere. She had never been in Nevada before. On August 28, 1942, she filed a demurrer to the complaint. On September 19, 1942, she filed an answer and a cross complaint, and on the same...