Ferrari v. Ferrari

• Decision Date: 31 December 1914
• Citation: 107 N.E. 404,220 Mass. 38
• Parties: DE FERRARI v. DE FERRARI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

220 Mass. 38

107 N.E. 404

DE FERRARI

v.DE FERRARI.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 31, 1914.

Report from Superior Court, Suffolk County; Edward P. Pierce, Judge.

Suit for divorce by Justina M. A. De Ferrari against Joseph R. De Ferrari. A decree denying a divorce, but allowing for separate maintenance and custody of the children, was entered. On an order finding that the defendants was in contempt for not complying with the decree, the case was reported. Cause remanded to the superior court for judgment.

Choate, Hall & Stewart and Lafayette R. Chamberlin, all of Boston, for libelant.

Irish & George, of Boston, for libelee.

RUGG, C. J.

This is a libel for divorce. It was heard at length by a judge of the superior court, who found that the evidence in behalf of the libelant failed to establish the allegations of her libel, and that the libelant had not been guilty of marital wrong toward her husband. But he did find ‘that the libelee's conduct towards and treatment of his wife has been such as to justify her in living apart from him, and that she is now living apart from him for justifiable cause.’ Thereupon a decree was entered, which is printed in a footnote.¹ The libelee took exceptions to the rulings of the trial judge and appealed from this decree. After the entry of the decree the libelant filed a petition praying that the libelee be adjudged in contempt of court for failure to comply with the terms of the decree. The judge of the superior court before whom this petition was heard found that the libelee was in contempt, and, continuing the case for judgment, reported it, if he had authority to do so, to this court for determination of questions of law raised at the hearing before him.

It is not necessary to decide whether the exceptions taken at the trial are prematurely entered (Weil v. Boston Elevated Railway, 216 Mass. 545, 104 N. E. 343), nor whether an appeal lies at this stage from the decree (Oliver Ditson Co. v. Testa, 216 Mass. 123, 103 N. E. 381), nor whether a proceeding for contempt can be reported (Newton Rubber Works v. De Las Casas, 198 Mass. 156, 84 N. E. 119); for if it be assumed in favor of the libelee that all the substantive questions argued by him are before us properly, it does not appear that he has been prejudiced by any error of law.

[1] The libelee contends that, when it had been found as a fact that neither the allegations of the libelant nor the counter charges of the libelee had been proved, the only decree which legally could have been entered was one dismissing the libel, and that the court had no jurisdiction to deal with the case in any other way. Whether this is sound or not depends on the meaning of R. L. c. 152, § 17.² This section is broad and comprehensive in its terms. It does not appear to be restricted in its operation to any particular stage of the proceedings. According to the strict interpretation of the phrase in which jurisdiction is conferred, it appears to be an alternative to the entry of a decree for divorce. The three preceeding sections had conferred ample power during the pendency of the libel to require the payment of alimony, to protect the wife from the restraint of the husband and to make provision for the custody of the children. Section 17 would add little to the jurisdiction conferred by these three earlier sections if its scope was intended to be so narrow as the libelee contends. It deals broadly with the subject of separate maintenance. Its purpose appears to provide exclusively for that matter so far as it goes. It excludes the probate court by reference to R. L. c. 153, § 33. Interpreting the section according to its natural meaning and in connection with its context, it confers upon the superior court full jurisdiction in cases where, after a hearing upon a libel, the conclusion is reached that the divorce ought not to be granted, but that there ought to be a temporary separation of the parties or a maintenance of the wife separate and apart from the husband, to deal with the case as the...