Holbrook v. Holbrook

• Citation: 46 N.E.2d 518,313 Mass. 163
• Parties: GIDEON L. HOLBROOK v. LENA I. HOLBROOK.
• Decision Date: 28 January 1943
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

313 Mass. 163

46 N.E.2d 518

GIDEON L. HOLBROOK v. LENA I. HOLBROOK.

Supreme Judicial Court of Massachusetts, Plymouth.

January 28, 1943

January 5, 1943.

Present: FIELD, C.

J., DONAHUE, DOLAN & COX, JJ.

Marriage and Divorce, Vacation of decree. Probate Court, Vacation of decree, Appeal, Findings by judge.

Notwithstanding noncompliance with Rule 40 of the Probate Courts (1934) providing for the filing of objections to a decree nisi of divorce becoming absolute, such a decree might be vacated upon petition by the libellee within six months after its entry if the libellee through mistake had failed to appear and contest the libel and had a good defence thereto.

In the absence of a report of evidence or of material facts found at the hearing of a petition by a libellee, filed within six months after the entry of a decree nisi of divorce and averring that through accident, mistake and misunderstanding she had failed to appear and contest the libel and that she had a good defence thereto, no error appeared in the entry of a decree vacating the decree nisi, reopening the case and giving the libellee an opportunity to be heard.

LIBEL for divorce filed in the Probate Court for the county of Plymouth on August 5, 1941.

A decree nisi and the decree described in the opinion were entered after hearings by Stone, J.

A. P. Richards, for the libellant. J. J. Geogan, for the libellee.

DOLAN, J. This is an appeal from a decree vacating a decree nisi of divorce entered in the Probate Court.

The libel alleged desertion on the part of the libellee, who was served on August 15, 1941, with the order of notice issued thereon. A decree nisi of divorce was entered on the libel on November 10, 1941. On April 24, 1942, the libellee filed a petition in the Probate Court reciting, in substance, that through accident, mistake and misunderstanding she failed to appear and contest the libel, that she had not had the advice of counsel until just before filing the petition, that she thought that she would be informed of the date of the trial and that she had a "perfect" defence to the libel and alleging cruel and abusive treatment on the part of the libellant, that he has failed to contribute to her support and that he had abandoned her "almost five years ago." The prayers of the petition were that the case be reopened and that the libellee be given an opportunity to be heard before the decree should become "final."...