Kerr v. Kerr

• Decision Date: 15 October 1920
• Parties: KERR v. KERR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

236 Mass. 353

128 N.E. 409

KERR

v.KERR.

Supreme Judicial Court of Massachusetts, Hampden.

Oct. 15, 1920.

Exceptions from Superior Court, Hampden County; Nelson P. Brown, Judge.

Libel for divorce by Alice Reed Kerr against James H. Kerr. Decree of divorce, with denial of alimony, and libelant excepts. Exceptions sustained.

D. E. Webster, of Springfield, for libelant.

R. J. Morrisey and J. L. Gray, both of Springfield, for libelee.

DE COURCY, J.

The trial judge granted a divorce on the ground of desertion. As he had no power to enter a decree while exceptions were pending, we treat the entry of May 7, 1920 as an order for a decree. Young v. Reynolds, 218 Mass. 129, 132, 105 N. E. 864;Friedrich v. Friedrich, 230 Mass. 59, 61, 119 N. E. 449.

At the hearing it appeared that in December, 1908, on a petition by Mrs. Kerr for separate support, the probate court found that she was living apart from her husband for justifiable cause; prohibited said James H. Kerr from imposing any restraint on her personal liberty; gave to her the care and custody of their minor child, then only 2 years old; and ordered him to pay her the sum of $100 and a further weekly sum of $7 for her support and the maintenance of their minor child ‘until the further order of said court.’ It further appeared that on July 1, 1909, these parties, through one Moore, as trustee, entered into a written agreement by which Kerr was to pay the trustee the sum of $1,000 in settlement of the separate maintenance suit, then pending in the superior court, and that said money was so paid. At the time of the divorce hearing the libelant was entirely without means, and dependent for her support and that of said minor child (now about 13 years of age), upon her own small earnings of $11 a week, or less. The exceptions raise the question whether the judge was right in ruling that said agreement of July 1, 1909, is a bar to any claim of alimony by the libelant or on behalf of the child.

The statute empowered the probate court to revise or alter the decree of December, 1908, or make a new one, from time to time, ‘as the circumstances of the parents or the benefit of the children may require.’ R. L. c. 153, § 33. This decree remained in effect notwithstanding the appeal to the superior court (R. L. c. 162, § 19), and admittedly was in full force at the time of the divorce hearing. The agreement of July 1, 1909, by its express terms was made in ‘settlement’ of that suit. Like the decree itself, it contemplated the continuance of the marriage status. As we construe the agreement, considering it as a whole and in the light of the circumstances in which it was executed, we are of opinion that the parties, in substituting a sum in gross for the weekly payments ordered by the probate court, intended to settle Kerr's legal obligations merely while the relation of husband and wife should exist. They did not have divorce in view, nor purport to make provision for the wife and child in the event that Kerr's legal obligation as husband should be thus terminated.

It is generally held that a duly executed separation agreement, where the husband and wife are living apart or about to separate, is valid and enforceable provided it was fairly made. Bailey v. Dillon, 186 Mass. 244, 71 N. E. 538,66 L. R. A. 427;Terkelsen v. Peterson, 216 Mass. 531, 104 N. E. 351. The purpose and effect of the agreement in controversy expired when the divorce was granted. The question whether the power of the probate court to increase the allowance decreed for the wife and...