Coe v. Coe

• Decision Date: 23 February 1943
• Citation: 313 Mass. 232,46 N.E.2d 1017
• Parties: KATHARINE C. COE v. MARTIN VAN BUREN COE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

313 Mass. 232

46 N.E.2d 1017

KATHARINE C. COE v. MARTIN VAN BUREN COE.

Supreme Judicial Court of Massachusetts, Worcester.

February 23, 1943

September 21, 1942.

Present: FIELD, C.

J., DONAHUE LUMMUS, QUA, DOLAN, COX, & RONAN, JJ.

Marriage and Divorce, Separate maintenance. Probate Court, Appeal Judicial discretion.

A wife's appeal from a decree of a Probate Court granting her what she contended was an inadequate award upon her petition for separate maintenance gave her husband no standing to contend that the decree should be so modified "as to terminate or substantially reduce the award." An allowance to a wife upon her petition under G. L. (Ter. Ed.) c. 209,

Section 32, for separate maintenance is solely for the purpose of providing for her support and not for the purpose of a division of the properties of the parties or of that of the husband.

Although an exercise of discretion by a judge of probate in making an award to a wife for separate maintenance is reviewable by this court on appeal, weight will be given to such exercise even when the record fully shows the basis for the action of the judge.

Upon a petition by a wife for separate maintenance, facts found as to the pecuniary resources of the husband, the necessities of the wife, the condition in life of the parties, their mode of living and their conduct toward each other failed to show error of law or fact in discretionary action of the judge allowing the wife no more than $35 weekly for her support.

PETITION, filed in the Probate Court for the county of Worcester on January 13 1941.

The case was heard by Wahlstrom, J. In her brief in this court, the petitioner-appellant urged that, "upon the facts found there is error in law involved in the grossly inadequate amount of the award, which was not made with reference to the ability of the husband to support her according to his station in life. . . . The amount of the award to the petitioner is not such an amount as would secure to her the same status, comforts and luxuries of life, which, except for his wrongdoing, she would have received and he was able to supply `according to his station in life.' . . . The award made is not based . . . upon the controlling fact that her status did not change materially according to his station in life owing to her misconduct."

The case was argued at the bar in September, 1942, before Field, C.J., Donahue, Dolan, Cox & Ronan, JJ., and afterwards was submitted on briefs to all the Justices.

F. P. McKeon, for the petitioner. S. Perman, for the respondent, submitted a brief.

FIELD, C.J. This is a petition for separate support brought in the Probate Court under G. L. (Ter. Ed.) c. 209, Section 32. The petitioner alleges that the respondent has failed, without justifiable cause, to provide suitable support for his wife, the petitioner, that he has deserted his wife, and that she is living apart from him for justifiable cause. A decree was entered reciting that she was so living apart from him and ordering him to pay to her for her support the sum of $35 weekly. The petitioner appealed on the ground that the amount awarded is "grossly inadequate." The respondent did not appeal. The case comes before us with a report by the judge of the material facts bearing upon the adequacy of the allowance, without a report of the evidence. See Romanausky v. Skutulas, 258 Mass. 190 , 193-194. Gallagher v. Phinney, 284 Mass. 255 , 257-258. Damon v. Damon, 312 Mass. 268 , 270.

The only question presented is whether there was error of law or fact in allowing the petitioner for her support an amount no greater than $35 weekly. Since the respondent has not appealed no question is presented with respect to the propriety of making some allowance to the petitioner for her support or of making an allowance to her of at least $35 weekly. The contention of the respondent that the court should "so modify the decree as to terminate or substantially reduce the award to the petitioner" is not open upon this record. Since the respondent has not appealed he is not entitled to a decree more favorable to him than the decree entered. By reason of his not having appealed he must be taken to have been satisfied with this decree. May v. Gates, 137 Mass. 389 , 390. Moors v. Washburn, 159 Mass. 172 , 176. Noyes v. Bragg, 220 Mass. 106 , 111. Rollins v. Gould, 244 Mass. 270 , 273. Kilkus v. Shakman, 254 Mass. 274 , 280, and cases cited. Beacon Oil Co. v. Maniatis, 284 Mass. 574 , 577. New York Life Ins. Co. v. Embassy Realty Co. Inc. 289 Mass. 528 , 529. Gross-Loge des Deutschen Ordens der Harugari v. Cusson, 301 Mass. 332 , 334-335. Ogens v. Northern Industrial Chemical Co. 304 Mass. 401 , 402.

The burden rested upon the petitioner, the appealing party, to show by a record presented by her to this court that there was error of law or fact in the decree appealed from by reason of which she did not obtain a decree as favorable to her as the decree to which she was entitled, that is, that there was error of law or fact in not making an allowance to her for her support in an amount greater than $35 weekly. Donovan v. McCarty, 155 Mass. 543, 545. Teasdale v. Newell & Snowling Construction Co. 192 Mass. 440 , 441. Martin v. Murphy, 216 Mass. 466 , 468. Long v. George, 296 Mass. 574 , 579. The principle applicable to an appeal from a decree is the same as that applicable to exceptions. The burden of showing error is on the excepting party. Posell v. Herscovitz, 237 Mass. 513 , 517, and cases cited. Curtin v. Benjamin, 305 Mass. 489 , 494.

The record shows no error of law or fact in the decree appealed from in not making an allowance to the petitioner for her support in an amount greater than $35 weekly.

The matter of the adequacy of the allowance is to be determined on the basis of the facts stated in the report of material facts made by the judge. This report "is to be regarded as a finding of all the material facts on which his decision was founded." Topor v. Topor, 287 Mass. 473, 476.

In determining the amount to be allowed for the support of a wife who, as in the case of the petitioner, is living apart from her husband for justifiable cause, the principles governing the award of alimony upon a libel for divorce are, in general, to be followed. Williamson v. Williamson, 246 Mass. 270 , 272. Densten v. Densten, 280 Mass. 48 , 50. The fundamental principles are these: (a) The allowance is made, in recognition of the legal right of a wife to be supported by her husband, solely for the purpose of providing for her support and not for the purpose of a division of their properties or of the property of the husband. Holbrook v. Comstock, 16 Gray, 109, 110. Southworth v. Treadwell, 168 Mass. 511 , 513. Adams v. Holt, 214 Mass. 77 , 78. Brown v. Brown, 222 Mass. 415 , 417. Rollins v. Gould, 244 Mass. 270 , 272. Topor v. Topor, 287 Mass. 473 , 476. Commonwealth v. Pouliot, 292 Mass. 229 , 231-232. Commonwealth v. Whiston, 306 Mass. 65 , 66. (b) The amount to be allowed is that which is "just and reasonable upon all the circumstances of the case" (Graves v. Graves, 108 Mass. 314, 321), but no fixed rule is established as to the relative weight to be given to the various circumstances proper for consideration. (c) The determination of the amount to be allowed rests to a considerable extent in the discretion of the trial judge (Graves v. Graves, 108 Mass. 314 , 318; see also Burrows v. Purple, 107 Mass. 428 , 435; Brown v. Brown, 222 Mass. 415, 417), and, although the exercise of such discretion is subject to review on appeal, the appellate court, even when the basis for the action appears fully in the record on appeal, will give weight to the exercise of discretion by the court below. Long v. George, 296 Mass. 574 , 579.

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