Kinosian v. Kinosian

• Decision Date: 07 June 1966
• Citation: 217 N.E.2d 769,351 Mass. 49
• Parties: Sarkis KINOSIAN v. Mabel KINOSIAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 769

217 N.E.2d 769

351 Mass. 49

Sarkis KINOSIAN v. Mabel KINOSIAN.

Supreme Judicial Court of Massachusetts, Worcester.

Argued April 5, 1966.

Decided June 7, 1966.

Austin A. Philbin, Clinton, for libellant.

No argument or brief for libellee.

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

SPALDING, Justice.

On May 18, 1960, Sarkis Kinosian (libellant) was granted a decree nisi against his wife, Mabel, on the ground of desertion. No alimony was prayed for in the libel and none was granted in the decree. Before the decree became absolute Mabel filed a petition to have the decree nisi vacated 'because of an alleged mistake or misunderstanding.' The petition was opposed by the libellant. On November 15, 1960, a decree was entered dismissing the petition.

On January 17, 1961, Mabel filed a petition requesting 'that the Decree Nisi * * * (entered) on May 18, 1960, be modified to include support or alimony' for her. On June 5, 1961, a decree was entered ordering that the divorce decree be modified by requiring the libellant to 'pay to the libellee for the support of herself the sum of fifteen dollars each and every week, said payments to be retroactive to May 18, 1960,' the date of the decree nisi. The libellant appealed from this decree. Pursuant to a request by the libellant, the judge made a report of the material facts. The evidence is not reported.

The pertinent findings of the judge were as follows: After the libel for divorce was filed, counsel for Mabel promptly filed an appearance. While the case was pending and before it was heard, the libellant 'called upon his wife and in the presence of a daughter, stated that he would pay her $15.00 a week alimony.' 'Both counsel were apprised of this agreement and drew up a written stipulation. The wife was informed by her counsel that the stipulation awaited her signature.' She 'felt that a deal was a deal and * * * did not bother to sign the stipulation.' Counsel for Mabel withdrew his appearance. At the hearing, which was uncontested, the judge asked the libellant if he was paying anything to his wife for support and he stated that 'he had been paying her $10,00.' When asked by the judge if there was any agreement for support, the libellant replied that there was not. At the hearing to vacate the decree nisi it appeared that Mabel had no objection to the divorce; her only objection was that the decree should have contained 'a provision of $15.00 weekly in lieu of alimony.' She informed the court at that time that she had decided to bring a petition for modification. The petition to vacate was then dismissed and subsequently the present petition for modification was brought.

The judge found 'that at the time of the decree nisi, the libellee was without public charge.' He ordered that the decree physical condition she would become a public charge.h He ordered that the decree nisi be modified 'by ordering the payment of $15.00 weekly retroactive to May 18, 1960, the date of the decree nisi.'

General Laws c. 208, § 37, provides: 'After a decree for alimony or an annual allowance for the wife or children, the court may, from time to time, upon the petition of either party, revise and alter its decree relative to the amount of such alimony or annual allowance and the payment thereof, and may make any decree relative thereto which it might have made in the...