Gunter v. Gunter

• Decision Date: 31 March 1975
• Citation: 325 N.E.2d 297,3 Mass.App.Ct. 729
• Parties: John A. GUNTER v. Kathleen N. GUNTER.
• Court: Appeals Court of Massachusetts

Page 297

325 N.E.2d 297

3 Mass.App.Ct. 729

John A. GUNTER v. Kathleen N. GUNTER.

Appeals Court of Massachusetts, Middlesex.

Argued March 12, 1975.

Decided March 31, 1975.

Walter E. Palmer, Brookline (Robert G. Cohen, Brookline, with him) for petitioner.

Before HALE, C.J., and ROSE and GRANT, JJ.

RESCRIPT.

Although the separation agreement between the parties dated March 13, 1973, did not expressly provide that it should survive the entry of a decree in any divorce proceedings which might thereafter be instituted, we think it did so by implication when it provided that the stipulated monthly payments by the husband should 'continue until the death or remarriage of . . . (the) wife' (emphasis supplied). See and compare Whitney v. Whitney, 316 Mass. 367, 370--371, 55 N.E.2d 601 (1944); Freeman v. Sieve, 323 Mass. 652, 656, 84 N.E.2d 16 (1949); Hills v. Shearer, 355 Mass. 405, 408--409, 245 N.E.2d 253 (1969); Surabian v. Surabian, --- Mass. ---, ---, ^a 285 N.E.2d 909 (1972). Contrast Kerr v. Kerr, 236 Mass. 353, 355, 128 N.E. 409 (1920). The decree nisi obtained by the wife on December 5, 1973, did not expressly order the husband to comply with the support provisions of the agreement. Compare Hathaway v. Rickard, 323 Mass. 501, 503, 82 N.E.2d 881 (1948). Contrast Fabrizio v. Fabrizio, 316 Mass. 343, 344, 347, 55 N.E.2d 604 (1944); De Gategno v. De Gategno, 336 Mass. 426, 429, 146 N.E.2d 497 (1957). Although the decree (from which no appeal was taken) referred to the agreement and purported to incorporate the same by reference (see Smith v. Smith, 358 Mass. 551, 553--554, 265 N.E.2d 858 (1971)), we think it did so only by way of explaining why no order was being entered for the support of the wife and minor child. Accordingly, the court was without jurisdiction to grant the prayers of the former husband's present petition for modification of the support provisions of the agreement. Schillander v. Schillander, 307 Mass. 96, 98--99, 29 N.E.2d 686 (1940); Whitney v. Whitney, 316 Mass. 367, 371, 55 N.E.2d 601 (1944); Freeman v. Sieve, 323 Mass. 652, 657, 84 N.E.2d 16 (1949); Cannon v. Cannon, --- Mass.App. ---, ^b 316 N.E.2d 762 (1974). It has not been argued that the judge erred in refusing to disturb the custody provisions of the 1973 decree.

Decree affirmed.

a. Mass.Adv.Sh. (1972) 1461, 1463.

b. Mass.App.Ct.Adv.Sh. (1974) 860.