Diggs v. Diggs

• Decision Date: 28 June 1935
• Parties: DIGGS v. DIGGS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

291 Mass. 399

196 N.E. 858

DIGGS v. DIGGS.

Supreme Judicial Court of Massachusetts, Middlesex.

June 28, 1935

Libel for divorce by Henry Diggs against Mociel A. Diggs. From a decree overruling objections to a decree nisi entered December 18, 1934, as of May 6, 1931, and dismissing a petition to vacate such decree, libelee appeals.

Reversed.

Appeal from Probate Court, Middlesex County; Beane Judge.

J. S R. Bourne, of Boston, for appellant.

H. Williams and F. P. Hanford, both of Boston, for appellee.

RUGG Chief Justice.

This is an appeal from a decree overruling objections to a decree nisi entered in a divorce case and dismissing a petition to vacate that decree. A libel for divorce was filed by Henry Diggs, hereafter called the libellant, on September 24, 1930, against his wife, Mociel A. Diggs, hereafter called the libellee. A divorce nisi on the grounds of cruel and abusive treatment was granted to the libellant on January 16, 1931. On February 12, 1931, the libellee filed a petition setting forth objections to the decree nisi becoming absolute and praying that it be vacated. There was a hearing on this petition at some time not shown by the record, but assumed by both parties at the argument to have been on May 6, 1931. The libellant died on October 18, 1931. No decision was rendered on this petition until December 18, 1934, when the objections were overruled and the petition was dismissed as of May 6, 1931. From this action the libellee appealed. The administrator of the estate of the mother and next of kin of the libellant, deceased since his death, asserting that property rights are involved, has appeared and argued in opposition to the contentions of the libellee.

There is no report of the evidence and no finding of material facts by the trial judge. Therefore, the single question presented is whether as matter of law, the petition setting forth objections to the decree nisi becoming absolute rightly could have been dismissed on December 18, 1934, as of May 6, 1931. Courts have inherent powers in appropriate cases to make entries nunc pro tunc. Currier v. Lowell, 16 Pick. 170; Perkins v. Perkins, 225 Mass. 392, 114 N.E. 713.The precise point for decision is whether such an order was permissible in the circumstances here disclosed.

It is provided by G. L. (Ter. Ed.) c. 208, § 21, that decrees for divorce shall in the first instance be decrees nisi and shall become absolute after the expiration of six months unless the court within that period for sufficient cause upon application of any party interested otherwise orders. The slight verbal changes made in the statute from time to time have wrought no alteration in its meaning. Main v. County of Plymouth, 223 Mass. 66, 69, 111 N.E. 694.By Rule 4 of the Probate Courts (1924), in force prior to November 1, 1934, after the filing by the libellee of a statement of objections to an absolute decree before the expiration of six months from the granting of the decree of divorce nisi, such ‘ decree shall not become absolute until such objections have been disposed of by the court.’ The same provision is now in Rule 40 of the Probate Courts (1934). This is a valid rule. It is in effect a general order that, upon the filing of a statement of objections within six months after the entry of the decree nisi, no decree absolute shall be entered because of the mere efflux of time without some judicial disposition of the objections. It prevents a decree nisi from becoming a decree absolute by lapse of time, even though a longer period than six months has elapsed after a statement of objections has been filed, until those objections have been disposed of. It follows that the divorce nisi in the case at bar had not become absolute on October 18, 1931, when the libellant died, because the objections filed by the libellee had not then been disposed of. Brown v. Brown, 207 Mass. 254, 93 N.E. 607.

A decree of divorce entered nisi does not dissolve the marriage. After the entry of such a decree, the death of either party before the decree has been made absolute puts an end to the proceeding for divorce, and thereafter the divorce cannot be made absolute either by order of court or by operation of the statute. A libel for divorce is personal to the libellant. It is abated by the death of either party. The object of divorce is to dissolve the marriage. The status of marriage ceases to exist instantly upon such death. It would be vain for the law to attempt to loose the bonds of matrimony thus so...