Meyer v. Meyer

• Decision Date: 14 January 1957
• Citation: 139 N.E.2d 709,335 Mass. 293
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Anne W. MEYER v. Oswald Frederick MEYER.

Page 709

139 N.E.2d 709

335 Mass. 293

Anne W. MEYER v. Oswald Frederick MEYER.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Dec. 5, 1956.

Decided Jan. 14, 1957.

Thomas J. Carens, Boston, for petitioner.

James C. Roy, Boston, for respondent.

Before WILKINS, C. J., and RONAN, WILLIAMS, COUNIHAN and CUTTER, JJ.

CUTTER, Justice.

The parties to this proceeding are husband wife. The wife, then a resident of the United Kingdom, on December 8, 1944, filed a petition for separate support in the Probate Court against the husband, then and now a resident of Brookline. She alleged that the husband 'has deserted her; and that she is living apart from her * * * husband for justifiable cause' and specified 'that the respondent [the husband] has deserted' her. A decree entered on September 7, 1949, (1) recited that the husband had deserted the wife, and that she was living apart from the husband for justifiable cause, and (2) ordered the husband to pay '£25 sterling, income tax free,' each week to the wife, except when she was in the United States when the weekly payment was to be $100, 'income tax free.'

The evidence at the hearing leading to the 1949 separate support decree indicated that the couple had then been married about twenty-five years and had four children of full age and one minor child. One child had died. The record shows no indication of real marital trouble until 1942, when the husband came to the United States on a six weeks war time temporary exit permit. A few weeks after the husband's arrival in the United States, the wife received letter and cable communications from him demanding a divorce in peremptory terms. He stated, with no apparent indication of shame, that he wished to marry a woman he had met here, 'the one woman in the world whom I love and adore,' and that his decision was irrevocable, despite the 'pain and sadness' and hurt to his wife's pride which he would cause. He reported also that he had spent two nights in a New York hotel with a woman, whose first name alone was known to him. He enclosed the receipted hotel bill made out to 'Mr. and Mrs. Oswald F. Meyer, Weybridge, England,' suggesting to his wife 'you will no doubt need it in your action against me for divorce.' A later letter told his wife that if she ignored his request for a divorce, he would 'be forced to cut' her 'allowance to a sensible amount.'

The case is now here on appeals by the husband from four decrees entered March 12, 1956, as follows: (1) a decree holding the husband in contempt (on a petition filed by the wife in 1955) of the 1949 separate support decree and ordering him to pay the wife £1271 10s, to meet British income taxes due from the wife on the payments to her under the 1949 decree plus interest and charges on these taxes: (2) a decree granting in part a 1955 petition of the wife for modification of the 1949 decree; (3) a decree denying a petition filed in 1955 by the husband seeking revocation of the 1949 decree; and (4) a decree allowing counsel fees and expenses to the wife in connection with the 1955 petitions just mentioned. The probate judge filed three reports of the material facts, one dealing with the petitions for contempt and modification of the 1949 decree, and one on each of the other two petitions. The evidence is reported.

1. The petition of the husband for revocation of the 1949 decree. The husband sought revocation of the 1949 decree on the ground that the wife in 1952 had brought proceedings (still pending) in New York for an absolute divorce on the ground of adultery, in which the husband did not submit to the jurisdiction of the New York court. His contention is that the sole ground of the 1949 decree was desertion and that the initiation of the New York divorce proceedings was conclusive proof of consent to that desertion, requiring dismissal of the separate support proceedings under the doctrine of Najjar v. Najjar, 227 Mass. 450, 116 N.E. 808.

Authority to grant orders for support exists under G.L (Ter.Ed.) c. 209 § 32 as amended by St. 1938, c. 136. ¹ Under this section, if the husband had deserted the wife or if she is living apart from him for justifiable cause, an order for support may be made. Grounds which might not support a libel for divorce, see, for example, Turgeon v. Turgeon, 329 Mass. 364, 366, 108 N.E.2d 532, and cases cited, may support a petition for separate support which is designed to secure the temporary and continuing support of the wife rather than to create a judicial separation or a permanent status for the future. See Slavinsky v. Slavinsky, 287 Mass. 28, 31, 190 N.E. 826; Dunnington v. Dunnington, 324 Mass. 610, 611-612, 87 N.E.2d 847; Welker v. Welker, 325 Mass. 738, 741-742, 92 N.E.2d 373; Jelly v. Jelly, 327 Mass. 706, 709, 100 N.E.2d 681; DeMarzo v. Vena, 330 Mass. 118, 123, 111 N.E.2d 797. Separate support will be granted where a wife has been deserted and continues to live apart from her husband for justifiable cause, even where, because of improper conduct by her husband in connection with or subsequent to the desertion, she reasonably comes to the conclusion that she no longer is willing to live with him, even if he wants her to do so. Tuttle v. Tuttle, 240 Mass. 417, 134 N.E. 231. Fleming v. Fleming, 293 Mass. 147, 148-149, 199 N.E. 319. Compare the somewhat analogous situation discussed in Slavinsky v. Slavinsky, 287 Mass. 28, 33, 190 N.E. 826.

Najjar v. Najjar, 227 Mass. 450, 116 N.E. 808, relied on by the husband, holds that a libel for divorce on the ground of cruel and abusive treatment, brought by a wife within three years following her husband's desertion of her, was conclusive proof that thereafter the continuance of the desertion was with her consent, thus preventing divorce on the ground of desertion. See also Craskin v. Craskin, 288 Mass. 56, 192 N.E. 314. Rubinstein v. Rubinstein, 319 Mass. 568, 575-576, 66 N.E.2d 793. These cases, dealing with divorce, do not control (as the Fleming and Tuttle cases, supra, indicate) a proceeding under G.L. (Ter.Ed.) c. 209, § 32, for separate support to provide for the wife, while grounds for her living apart exist.

Although the desertion of the wife by the husband in 1942 was the basis specified in the wife's original petition for separate support, her proof in that proceeding of 'written communications of a threatening and cruel nature' and of a character repudiating the marriage and seeking its termination, see Turner v. Turner, 234 Mass. 37, 40-41, 124 N.E. 721; Bradford v. Bradford, 296 Mass. 187, 189-190, 4 N.E.2d 1005, was ample, as the probate judge found, to warrant the finding, recited in the 1949 decree, that in 1949 the wife was living apart from the husband for justifiable cause. Fleming v. Fleming, 293 Mass. 147, 199 N.E. 319. See Brown v. Brown, 323 Mass. 332, 334, 81 N.E.2d 820.

There is nothing in this record to show that since 1949 the husband (any more than the husband in Tuttle v. Tuttle, 240 Mass. 417, 134 N.E. 231) has removed any of the serious causes (including and in addition to the desertion) which his offensive conduct toward his wife originally gave her for living apart from him. See Slavinsky v. Slavinsky, 287 Mass. 28, 33, 190 N.E. 826. Even if the filing of the 1952 libel in New York is viewed as definite indication by the wife that she does not wish to return to the husband, it is no basis for revocation of a separate support order originally based on strong evidence of desertion, then greatly aggravated by the cruel conduct, already described, which in itself would have justified the wife in living apart from her husband.

2. The wife's petition for modification and her contempt petition. As already stated, the 1949 decree directed the husband to pay to the wife certain sums 'income tax free.' The sums themselves were paid by the husband but no amount for either United Stated or British income tax was paid to the wife. The wife was assessed for each of the British tax years 1951 to 1955, inclusive, aggregate United Kingdom income taxes on the sums paid to her by her husband amounting to £1271 10s (after adjustments which it is not necessary to describe). The evidence warranted the probate judge in finding that this amount was definitely payable to the British tax authorities.

There was also evidence warranting findings that the husband's own expenditures still run at about the same level as in 1949; that his income before taxes has declined; that two Massachusetts corporations in which he is interested, have in recent years been doing somewhat less well than in 1949; that one of these corporations sustained a serious loss in 1951; that in 1952 the husband irrevocably transferred his shares in two foreign companies to trustees in trust for his issue so that such property would be out of the reach of his wife and for other reasons; that the husband had set up a revocable trust of his shares in the two Massachusetts corporations mentioned above, for the benefit of himself for life and thereafter for his children; that the husband has incurred substantial medical expense in recent years and now must live carefully because of certain serious physical conditions; that as of April 30, 1955, one of his corporations had an earned surplus of $83,860; and that the husband has no 'dip into capital and savings' to keep up with his obligations. The probate judge, however, states that he has 'no substantive evidence as to the extent of his 'capital and savings.".

The principal purpose ² of the wife's petition for modification was to make more specific the obligation of the husband with respect to her British income taxes. In her contempt petition, the wife requested the payment to her some £3393 17s, 6d (about $9,500). This she thought she needed to meet her British income taxes on the past payments under the 1949 decree. The payment requested was reduced (in the light of a subsequent British tax ruling) to £1271, 10s, plus interest and charges...