Eldridge v. Eldridge

• Decision Date: 01 March 1932
• Parties: ELDRIDGE v. ELDRIDGE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

278 Mass. 309

180 N.E. 137

ELDRIDGE

v.ELDRIDGE.

Supreme Judicial Court of Massachusetts, Middlesex.

March 1, 1932.

Appeal from Probate Court, Middlesex County; C. N. Harris, Judge.

Libel for divorce by Helen L. Eldridge against Joseph I. Eldridge. From certain adverse decrees, libelant appeals.

Affirmed.

W. A. Graustein, of Cambridge, for libelant.

R. Clayton and L. A. Pike, both of Boston, for libelee.

CROSBY, J.

This is a libel for divorce, filed November 15, 1928, in the probate court for the county of Middlesex, alleging adultery and cruel and abusive treatment. The case comes before us on appeals by the libelant from certain decrees.

On December 14, 1928, the libelee was ordered to pay the libelant toward her support and that of their minor child $60 a week. On the same day the libelee filed an answer consisting of a denial of the allegation of adultery, and on December 28, by leave of court, filed a motion to amend his original answer by substituting therefor a general denial of all the allegations of the libel, and a plea of condonation of the charge of adultery. This motion was allowed on January 14, 1929. Thereafter the case was heard on the merits, and on September 16, 1929, the libelant was granted a decree nisi for the cause of cruel and abusive treatment, which was to become absolute after the expiration of six months from the entry of the decree unless the court should otherwise order. On September 12, 1929, the libelee had filed a motion to amend his answer by alleging that if the libelant should prove the allegations of cruel and abusive treatment the same was condoned by her. This motion was denied on September 19, 1929. In a decision filed by the judge he states that at the original hearing he found that adultery was not proved, but that the charges of cruelty were sustained; that at that hearing he was requested to find that the libelant had condoned the alleged acts of cruelty; that he refused so to find on the ground that condonation had not been set up as an affirmative defense by the answer to the charge of cruel and abusive treatment, although it had been pleaded as a defense to the charge of adultery. The judge further found that evidence was introduced at the orginal trial which would have warranted a finding of condonation. From the decree nisi the libelee, on September 19, 1929, filed an appeal to this court.

It does not appear that any action in the case was taken thereafter until April 23, 1930, on which date the libelee filed a petition to set aside the decree nisi on the ground that failure to plead condonation to the allegation of cruel and abusive treatment was due to the inadvertence, mistake or negligence of his counsel, since deceased, who believed that the pleading filed was sufficient for all alleged causes for divorce set forth in the libel. The petition also prayed that the libelee be allowed to amend his answer by pleading condonation to the charge of cruel and abusive treatment. On June 24, 1930, the libelant filed a motion to dismiss the libelee's motion to set aside the decree nisi. On June 26, 1930, this motion was denied and the libelant appealed. The libelee waived his appeal from the entry of the decree nisi, and the next day, June 27, the judge ordered the decree nisi to be vacated; the libelee was given leave to file an answer alleging condonation of the charge of cruel and abusive treatment and the case was ordered to stand for further hearing solely on that issue. From this decree the libelant appealed. The order denying the libelee's motion to amend his answer by pleading condonation to the charge of cruel and abusive treatment entered September 19, 1929, was revoked, and the motion was allowed on June 27, 1930. On April 1, 1931, the libelee filed a further answer alleging condonation of the charge of cruel and abusive treatment, which was denied by the libelant. Thereafter the case was heard upon the merits, and on April 10, 1931, the judge filed a decision and therein ordered the libel dismissed on the ground that the libelant had condoned certain of the acts of cruel and abusive treatment by living with the libelee after the acts complainedof, which occurred from December, 1927, until in November of the following year. The libelant on April 14, 1931, filed an appeal from the decree dismissing the libel, and on the same day filed a request for a report of material facts found by the judge. The judge filed the report on July 8 1931, referring in the main to his decision filed on the tenth of the previous April. On July 13 the libelant filed a motion that the decree dismissing the libel be vacated for want of jurisdiction. This motion was denied on November 13 and the libelant appealed.

It is settled that a court of probate has power to correct or vacate its decree for adequate and legal cause. It was said in the recent case of Goss v. Donnell, 263 Mass. 521, at pages 523, 524, 161 N. E. 896, 897: ‘It now is settled that a court of probate has power to correct errors in its decrees arising out of fraud, or mistake, or want of jurisdiction, or for any reason adequate in law. Its power in this field is ‘analogous to that of courts of common law to issue writs of review, and of courts of equity to entertain bills of review. It is to correct mistakes of fact or of law.’' Crocker v. Crocker, 198 Mass. 401, 404, 405, 84 N. E. 476. The mistake in the case at bar could have been found to have been in believing that the plea of condonation filed originally by the attorney of the libelee was broad enough to be applicable to all causes for divorce alleged in the libel. Condonation is an affirmative defense. It could not be heard unless set up by the answer. Divorce Rule 8 of the Probate Court. Sanderson v. Sanderson, 271 Mass. 386, 171 N. E. 476. It is plain that the Probate Court on June 27, 1930, had jurisdiction to vacate the decree nisi entered on ...