Hinds v. Hinds
| Citation | 329 Mass. 190,107 N.E.2d 319 |
| Parties | HINDS v. HINDS. |
| Decision Date | 03 July 1952 |
| Court | United States State Supreme Judicial Court of Massachusetts |
W. Minot, Boston, for petitioner.
R. Wait, Boston, for respondent.
Before QUA, C. J., and LUMMUS, RONAN, WILKINS and SPALDING, JJ.
This case presents some unusual features. On January 24, 1950, the Probate Court granted a divorce to the wife with the custody of the three minor sons of the parties, now aged respectively about eleven, eight, and five years, and with a provision for their support by the husband. On September 4, 1951, on the petition of the former husband a decree was entered by another judge of the same court granting custody of the children to the former husband. On December 21, 1951, on the petition of the former wife, a decree was entered by the judge first mentioned again granting custody of the children to the former wife, with a provision for their support by the husband. The petition on which this last decree was entered was filed by the former wife only fourteen days after the decree granting custody to the former husband and before the time for appealing from that decree had expired. The former husband now appeals from the decree of December 21, 1951, granting custody to the former wife. The evidence is not reported.
It is provided by G.L. (Ter.Ed.) c. 208, § 28, that upon or after a decree for divorce the court may make a decree relative to the care, custody and maintenance of the minor children of the parties 'and afterward may from time to time, upon the petition of either parent, * * * revise and alter such decree or make a new decree, as the circumstances of the parents and the benefit of the children may require.'
The argument of the appealing former husband is that the last decree of the series, restoring custody to the former wife, was not based upon any change in circumstances occurring since the previous decree granting custody to the former husband, and that it is not orderly judicial procedure for one judge to reverse the decree of another judge of the same court upon the same set of facts.
It must now be considered as settled that, ordinarily at least, a change in an order for custody or maintenance under G.L. (Ter.Ed.) c. 208, § 28, must be based upon some change in the circumstances of the parties since the preceding decree was entered. Smith v. Smith, 190 Mass. 573, 77 N.E. 522; Coe v. Coe, 320 Mass. 295, 305-306, 69 N.E.2d 793; Whitney v. Whitney, 325 Mass. 28, 32, 88 N.E.2d 647; O'Brien v. O'Brien, 325 Mass. 573, 576, 91 N.E.2d 775. But in the present case, notwithstanding the shortness of the interval, we think it appears that there were material changes in circumstances between the decree of September 4, 1951, giving custody to the former husband and the decree of December 21, 1951, restoring custody to the former wife, and that the last decree rests upon these circumstances. Moreover, it is very properly conceded that the judge...
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