Jenkins v. Jenkins

• Decision Date: 01 November 1939
• Citation: 23 N.E.2d 405,304 Mass. 248
• Parties: JENKINS v. JENKINS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

304 Mass. 248

23 N.E.2d 405

JENKINS

v.JENKINS.

Supreme Judicial Court of Massachusetts, Middlesex.

Nov. 1, 1939.

Divorce action by Esther H. Jenkins against Charles E. Jenkins. Charles E. Jenkins was granted a divorce nisi. From a decree modifying decree awarding custody of minor child to Charles E. Jenkins, so as to permit Esther H. Jenkins to have the child during certain hours on alternate week-ends and on Easter, Thanksgiving and Christmas, and for a period of two weeks continuously during July or August of each year, Charles E. Jenkins appeals.

Affirmed.Appeal from Probate Court, Middlesex County; Leggat, Judge.

G. H. Chase, of Boston, for libelee.

B. Saunders, of Boston, for libellant.

COX, Justice.

This is an appeal from a decree of the Probate Court of March 3, 1939, modifying its decree of February 7, 1938, by the terms of which the custody of the child of the parties was given to the father, who was granted a divorce nisi. The decree, as so modified, permitted the mother to have the child during certain hours on alternate week ends, on Easter, Thanksgiving and Christmas, and for a period of two weeks continuously during July or August of each year. It also provided that the father should pay the mother $10 each week for the maintenance of the child during the summer period of two weeks, and, except as so modified, the first decree was affirmed. It was further decreed that the father should pay the mother as counsel fee the sum of $250. The same judge of probate heard the divorce petition and that for the modification of custody. A ‘Commissioner’ was appointed under G.L.(Ter.Ed.) c. 215, § 18, to take the evidence, which is reported. A guardian ad litem was appointed under G.L.(Ter.Ed.) c. 215, § 56A, to investigate the facts and report to the court. The father makes two contentions: (1) that the refusal to allow the introduction of evidence of material facts prior to the original decree of divorce was error, and (2) that upon all the evidence introduced at the hearing no modification of the decree as to custody could have been made.

1. The consideration of the first contention depends upon whether any exception was taken to the refusal to admit the evidence. The procedure in matters of divorce, if not specially prescribed, may be according to the course of proceedings in ecclesiastical courts or in courts of equity. G.L.(Ter.Ed.) c. 208, § 33. See, however, Greenia v. Greenia, 206 Mass. 449, 92 N.E. 725. Upon appeal from the Probate Court, ‘the evidence and all questions relating thereto shall be governed by sections twenty-four and twenty-five of chapter two hundred and fourteen and section one hundred and twenty-five of chapter two hundred and thirty-one.’ G.L.(Ter.Ed.) c. 215, § 12; Petition of Mackintosh, petitioner, 246 Mass. 482, 141 N.E. 496;Spilios v. Papps, 288 Mass. 23, 28, 192 N.E. 155. Said section 25 provides that, upon an appeal in a suit in equity in which the evidence is reported to the full court, all questions raised by exceptions taken at the hearing shall be subject to revision by the court in the same manner as if they were contained in a bill of exceptions, and the report of the evidence shall include, as a part thereof, notes of any exceptions properly taken and the rulings of the judge in respect thereto, and it is not necessary to file any bill of exceptions. G.L.(Ter.Ed.) c. 214, § 25. See Thayer v. Thayer, 277 Mass. 256, 178 N.E. 730. No exception appears to have been taken to the refusal of the probate judge to hear any evidence relating to events or conditions prior to the date of the first decree, although the record discloses his refusal so to do. But we prefer to consider the matter as if an exception was properly saved.

Upon decree of divorce, the judge may make such decree as he considers expedient relative to the care, custody and maintenance of the minor children of the parties, and may determine with which of the parents the children or any of them shall remain, and afterwards may, from time to time, upon the petition of either parent or of a next friend, revise and alter such decree or make a new decree, as the circumstances of the parents and the benefit of the children may require. G.L.(Ter.Ed.) c. 208, § 28. ‘The governing principle by which the court must be guided in deciding the issues raised is the welfare of the child. That is so both as matter of law and as matter of humanity. Every public and private consideration establishes this as the dominating rule.’ Hersey v. Hersey, 271 Mass. 545, 555, 171 N.E. 815, 820, 70 A.L.R. 518. In providing for the custody of a minor child, while the feelings and the wishes of the parents should not be disregarded, the happiness and the welfare of the child should be the controlling consideration. It is the duty of the judge to consider the welfare of the child in reference not merely to the present, but also to the probable future, and it is a subject peculiarly within the discretion of the judge. Oliver v. Oliver, 151 Mass. 349, 24 N.E. 51. See Perry v. Perry, 278 Mass. 601, 180 N.E. 512.

At the hearing on the petition, counsel for the father contended that, in view of the contention that a change in the circumstances had taken place since the original decree, it was first necessary to know what those circumstances were, and in the absence of ‘a record’ in the case it was necessary to go into the circumstances that existed ‘to show whether the facts are pertinent and what those circumstances were’ upon which the original decree was based. A further examination of the record discloses that what counsel was really after was a recital of the evidence relating to the alleged misconduct of the mother upon which the decree nisi was based; he stated that ‘Her condition prior to the divorce throws a great deal of light on what her condition is at the present time.’ See McCraw v. McCraw, 171 Mass. 146, 148, 50 N.E. 526;Callan v. Callan, 280 Mass. 37, 41, 181 N.E. 736. We think there was...