Hillery v. Hillery

• Decision Date: 04 April 1961
• Citation: 342 Mass. 371,173 N.E.2d 269
• Parties: Mary Magdalene HILLERY v. Thomas Hungiville HILLERY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 269

173 N.E.2d 269

342 Mass. 371

Mary Magdalene HILLERY v. Thomas Hungiville HILLERY.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Dec. 9, 1960.

Decided April 4, 1961.

Walter F. Levis, Boston, for libellant.

John F. Lombard, Boston, for libellee.

Before WILKINS, C. J., and SPALDING, WILLIAMS, CUTTER, and KIRK, JJ.

SPALDING, Justice.

On April 21, 1960, Mary M. Hillery obtained a decree nisi granting her a divorce from her husband, Thomas H. Hillery, on the ground of cruel and abusive treatment. Under the decree the custody of the two minor children was given to the wife, and the husband was ordered to pay to his wife $125 per week as alimony and a further sum of $125 per week for the maintenance of the children. From that part of the decree ordering these payments, the husband appealed. The judge made findings of material facts and the evidence is reported. It is our duty to examine the evidence and to decide the case on our own judgment. Rubinstein v. Rubinstein, 319 Mass. 568, 66 N.E.2d 793; Whitney v. Whitney, 325 Mass. 28, 88 N.E.2d 647.

The parties were married in 1952. The libellee, aged thirty-two, is a member of the bar but has virtually no practice. ¹ He is treasurer and secretary of M. H. Hillery Company, Inc. (hereinafter called the corporation), which operates a small trucking business with eleven employees. The corporation is a family affair which is operated by the libellee, his father, and his sister, Paula, who is its president. ² The libellee and his sister hold the stock of the corporation as trustees under the will of their mother for the benefit of their father for life; upon his death the trust is to terminate and the stock then goes to the libellee and his sister in equal shares. The libellee is paid a salary of $12,000 a year by the corporation and this is his principal source of income. The net sum received by the libellee after tax and other deductions is $9,876 or $189.93 a week. The payments, however, ordered by the judge amount to $250 a week or $13,000 a year.

The question then for decision is whether the judge could properly have found that the libellee's resources were sufficiently in excess of his admitted salary as to justify the payments which were ordered. The general principles to be applied in cases of this sort are well settled. The decision is largely within the discretion of the judge, 'after a consideration of all the facts, including the needs of the wife and the children, the financial worth of the husband, the station in life of the parties, and their mode of living.' Whitney v. Whitney, 325 Mass. 28, 30, 88 N.E.2d 647, 650; Coe v. Coe, 313 Mass. 232, 235-236, 46 N.E.2d 1017; Wilson v. Wilson, 329 Mass. 208, 211, 107 N.E.2d 195.

In the court below the libellant attempted to show that the libellee's income was much in excess of his $12,000 salary. The evidence clearly supports the conclusion that the libellee's standard of living was enhanced appreciably by gifts from his father and sister and by the corporation's payment of certain of his personal expenses. But the libellee's ability to pay cannot be based on either of these factors. Although the gifts from the family were substantial, they were for the most part for current expenses. ³ The evidence fails to show that these payments appreciably added to the libellee's net worth. Since they could be discontinued at any time, they cannot be considered in determining how much the libellee can afford to pay.

The evidence also shows that the corporation paid certain living expenses of the libellee and his family. The libellant and the libellee each had the use of an automobile which, including operating expenses, was provided by the corporation. Although the evidence is conflicting, it could have been found that the corporation paid, without any arrangement for reimbursement, many of the libellee's fuel and telephone bills. The libellee dined out frequently, often with guests, at restaurants and night clubs where substantial amounts were spent for food and liquor. Often the expenses incurred for this were paid for by the corporation. There was also evidence that in addition to his salary the libellee obtained $25 a week in cash from the corporation for expense money which he apparently used as he saw fit.

The advances made by the corporation were either gifts or loans. It is not clear from the evidence which they were intended to be. If they were gifts, there is serious doubt as to their legality. Officers of a corporation cannot use corporate funds for such purposes. At all events the gifts, if such they were, could be discontinued at any time. If, on the other hand, these payments were loans they did not enhance the libellee's net worth and they could likewise be discontinued at any time. Thus these payments, however they may be classed, did not constitute additional resources which would afford the basis for the challenged orders.

There were, to be sure, financial resources other than his salary. From investments the libellee received about $200 a year. He owned with the libellant, as tenants by the entirety, the house in which they lived. This, the judge found, had an equity of $8,000. They also...