Fabrizio v. Fabrizio

• Decision Date: 02 June 1944
• Citation: 316 Mass. 343,55 N.E.2d 604
• Parties: ENRICO E. FABRIZIO v. ANNA BERTHE FABRIZIO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

316 Mass. 343

55 N.E.2d 604

ENRICO E. FABRIZIO v. ANNA BERTHE FABRIZIO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 2, 1944

February 9, 1944.

Present: FIELD, C.

J., LUMMUS, DOLAN & RONAN, JJ.

Marriage and Divorce, Alimony, Separation agreement. Contract, By husband and wife. Probate Court, Modification of decree. Husband and Wife.

An agreement between a wife and her husband and a trustee, which was presented to a judge of probate hearing divorce proceedings by the wife against the husband, provided for a certain weekly sum to be paid the wife for the support of herself and two minor children "as and for and/or in lieu of" all alimony and support, "all for the past, present and future," included statements that it should become effective "in the event that a decree of divorce nisi shall be entered . . . which shall become . . . absolute, and all subject to the approval of said court," and also provided that "in the event that the court does not consent to and approve and make this agreement in all its essential particulars a part of its decree of divorce, then all rights and liabilities of the parties hereto shall cease," did not disclose an intention of the parties that it should be an independent agreement or anything but the basis for an order for payment of alimony and support and a decree nisi, providing, "Alimony and support in accordance with trust agreement on file which is made a part of this decree by reference," might afterwards be modified under G. L (Ter. Ed.) c. 208,

Section 37.

The fact that, some years after a decree of divorce directing the libellee husband to pay $25 per week to the libellant as alimony and for the support of two minor children, one of the children attained majority and became self supporting and the libellant and the other child could be supported adequately "in a style to which they . . . [were] accustomed by a lesser amount" warranted a modification of the decree by reducing the weekly amount to be paid by the libellee to $17.

PETITION, filed in the Probate Court for the County of Suffolk on October 5, 1940.

The case was heard by Dillon, J. A. M. Beale, for the respondent.

M. Tobey, for the petitioner.

DOLAN, J. This is an appeal from a decree entered in the Probate Court modifying an order for payment of alimony and support contained in a decree of divorce nisi which became absolute in due course. The decree appealed from ordered that "the decree entered in said court on June 29, 1934, be and the same hereby is modified as follows: Libellee pay to the said libellant the sum of seventeen (17) dollars weekly as alimony and support until the further order of the court."

The evidence is not reported, but at the request of the libellant the judge made a report of material facts found by him (G. L. [Ter. Ed.] c 215, Section 11). His decision must stand if supported by the pleadings and the facts found.

The facts found may be summed up as follows: The libellant, Anna, was granted a decree of divorce nisi from the libellee, Enrico, on June 29, 1934. At that time the parties had two minor children, Enrico, Jr., born January 8, 1922, and Roberto born June 5, 1927. When the decree nisi was about to be entered the parties filed and presented to the judge an agreement made between them and one Beale as trustee. This agreement was incorporated in the decree nisi, in this form: "Alimony and support in accordance with trust agreement on file which is made a part of this decree by reference." The agreement, which is incorporated by reference in the judge's report of material facts, after reciting the pendency of the libel for divorce in the Probate

Court for the county of Suffolk and the purpose of the then husband and wife to "avoid unnecessary publicity and expense of litigation," and that "negotiations between the husband and wife, through their respective counsel and the said trustee have resulted in an agreement between them regarding alimony, allowances in the nature of alimony and allowances of every kind and nature for the past, present and future, and regarding the custody, support and maintenance of Enrico E. Fabrizio, Jr., and Robert Fabrizio, the minor children of said husband and wife, and all allowances therefor, all in the event that a decree of divorce nisi shall be entered upon said libel which shall become and be absolute, and all subject to the approval of said Court; and Whereas the said husband and wife desire, subject to said approval of said court, to effectuate this agreement," provided that the husband should pay to the trustee $100 forthwith for counsel fees and expenses, and should also pay to the trustee for the support of "said wife . . . and the maintenance of said minor children . . . $25 . forthwith and . . . on each and every Wednesday hereafter . . . and the said wife hereby covenants and agrees to accept them as and for and/or...