Mcilroy v. Mcilroy

• Decision Date: 03 April 1911
• Citation: 94 N.E. 696,208 Mass. 458
• Parties: McILROY v. McILROY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

208 Mass. 458

94 N.E. 696

McILROY v. McILROY.

Supreme Judicial Court of Massachusetts, Suffolk.

April 3, 1911

The following rulings requested by respondent were refused:

'(1) Said decree of April 21, 1892, changed the status of the petitioner from a wife living with her husband to a wife living apart from him for justifiable cause. Separate support was an incident merely to her changed status and contionued only during the existence of such status. When she returned to live with him her former status was restored and her right to separate support was lost.

'(2) Said decree was an entirety and cannot by the act of the parties be so divided that the petitioner can have thereunder separate support without cohabitation a part of the time, cohabitation without separate support some of the time, and then separate support without cohabitation the rest of the time.

'(3) The reconciliation of the parties and the voluntary resumption of their marital relations was a condonation and forgiveness by the petitioner of the justifiable cause for which she was living apart from the respondent.

'(4) Such voluntary cohabitation was a waiver of the right of the petitioner to enforce payment of any arrears then due under said decree.

'(5) Said voluntary cohabitation avoided said decree and was a bar to the accumulation and recovery of further arrears thereunder.

'(6) Said decree was not suspended merely during the period of cohabitation to be revived automatically upon his subsequent desertion.

'(7) To entitle the petitioner to recover for separate support for any cause occurring during or after said period of cohabitation she should have brought new proceedings therefor and established the same by sufficient evidence of a new and justifiable cause of her living apart from him.

'(8) Evidence of the respondent's desertion in May, 1900, was inadmissible to revive said decree, or to enable the petitioner to recover thereunder for any arrears due at the beginning of said cohabitation or after its termination.

'(9) No such proceedings having been brought, evidence that the respondent finally deserted the petitioner in May, 1900, was improperly admitted and should have been excluded.

'(10) The arrears for separate support due under said decree, if any, at the beginning of said cohabitation do not survive the death of the respondent.

'(11) Arrears for separate support accruing under said decree after the termination of said cohabitation, if any, do not survive the death of the respondent.

'(12) The neglect of the petitioner for a period of more than 15 years to take action to enforce said decree, under the facts set forth in this report, shall be deemed laches sufficient to bar her enforcement of said decree.

'(13) The probate court has no authority to charge the Chelsea Savings Bank as trustee of the respondent when it appears that the funds in its hands stand in the name of the respondent as trustee of a third person.

'(14) Upon the facts set forth in the report the petitioner is not entitled to recover.'

COUNSEL

William J. Williams, for petitioner.

W. P Holcombe, for respondent.

OPINION

SHELDON, J.

It is not denied that the probate court had the power under the provisions of R. L. c. 153, § 33, to make its order for the payment by the respondent of a monthly sum to the petitioner his wife; and section 35 of the same chapter, by reference to R. L. c. 152, § 31, authorizes that court to issue execution for the enforcement of its order. But the respondent contends that the order was annulled and avoided, or at the least that it was made incapable enforcement, without any further order of the court, by the act of the petitioner in resuming cohabitation with her husband.

As this statute merely provides 'a new method of enforcing the right of marriage, which was enforced by an order for alimony after a divorce from the bonds of matrimony or a divorce from bed and board, or after the commencement of proceedings to obtain a divorce' (Bucknam v. Bucknam, 176 Mass. 229, 230, 57 N.E. 343, 49 L. R. A. 735), it may be assumed that the same rules which govern an order for alimony made by a divorce court are to be applied to the original order of the probate court which was the foundation of this proceeding. There is authority in some jurisdictions for the claim that a reconciliation of husband and wife after a decree for a judicial separation and for the payment of alimony will of itself annul the decree so that a claim for alimony can be no longer supported, even after a subsequent separation, without a new order having been obtained upon a new suit. Tiffin v. Tiffin, 2 Bin. (Pa.) 202; Liddell's Estate, 22 La. Ann. 9. And see the cases collected in 9 Am. & Eng. Encyc. of Law (2d Ed.) 852. But the practice in England arose from the form of the decree, which provided for a separation until the parties should have become reconciled, and was continued in some of our states under the language of statutes which were construed to fix the same limit. See the opinion of Vice Chancellor Green in Jones v. Jones (N. J. Ch.) 29 A. 502, containing an elaborate discussion of the question. In states in which no such limit has been fixed but provision has been made by statute for further action by the courts and the revision or modification of such a decree upon the application of one or both of the parties, it has been held, in accordance with what seems to us to be the sound reason, that the decree is not annulled, either permanently, or temporarily, by the reconciliation or renewed cohabitation of the parties or by the act of one of them in condoning the misconduct of the other, but that these circumstances, like any other change in the situation of the parties, simply afford ground for new action of the court, by annulling, revising or altering its former order as justice may require. This was so held in New Jersey in the case of Jones v. Jones, ubi supra, and again in New York, in renewed litigation between the same parties, in Jones, v. Jones, 90 Hun, 414, 35 N.Y.S. 877. The same rule was declared in Hobby v. Hobby, 5 A.D. 496, 39 N.Y.S. 36, citing and following the cases just referred to. It was acted on by this court in Albee v. Wyman, 10 Gray, 229, and in California in Wade v. Wade, 31 P. 258 ^[1], in which cases it was held, not that the second marriage of the wife or the return to cohabitation of the separated couple of itself annulled the decree for alimony, but that these facts warranted the court in revoking and refusing to enforce the prior decree.

This rule must govern the case at bar. The statute expressly provides that the court after having made its order, 'may from time to time' upon application of either party 'revise or alter such order or make a new order or decree' as circumstances may require. The manifest intention of the Legislature was that the order should not be vague and indefinite in its duration, liable to be abrogated or annulled by the mere act of the parties, and to be upheld or overthrown as parol evidence might establish or fail to establish conduct of the parties more or less inconsistent with the grounds upon which it was based, but that the order once made should continue in force until revised or altered by the court itself upon proper application and after due hearing. Allen v. Allen, 100 Mass. 374, 376; Graves v. Graves, 108 Mass....