Nicolai v. Nicolai

• Decision Date: 05 June 1933
• Parties: NICOLAI v. NICOLAI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

283 Mass. 241

186 N.E. 240

NICOLAI

v.NICOLAI.

Supreme Judicial Court of Massachusetts, Middlesex.

June 5, 1933.

Appeal and Report from Probate Court, Middlesex County; C. C. Campbell, Judge.

Libel for divorce by Palmira Nicolai against Romano Nicolai. From a decree overruling libelant's objection to the decree nisi becoming absolute, and refusing to allow libelant's dismissal of her libel, libelant appeals, and the case is reported.

Reversed.

V. Orlandini, of Boston, for appellant.

PIERCE, Justice.

This is an appeal from a decree of the probate court for the county of Middlesex, whereby said court overruled the objections of the libellant to the decree nisi becoming absolute in the libel for divorce brought by her against Romano Nicolai, to its refusal to give certain requests for rulings of law, and to its refusal to allow the libellant's dismissal of her libel filed May 16, 1932.

The material facts are as follows: On July 16, 1931, Palmira Nicolai brought a libel for divorce against her husband, Romano Nicolai, alleging cruel and abusive treatment on specific days and at divers other times. The libel alleged ‘that there has been born to them no children who are living.’ The libel ‘prays that a divorce from the bond of matrimony between your libellant and the said libellee be decreed; that an allowance be decreed to your libellant for her support,’ and that the real estate be attached ‘to secure a suitable support and maintenance to your libellant.’ The libellee filed an answer alleging cruel and abusive treatment toward him which ‘was continuous from the time of their marriage to the 13th day of July 1931 inclusive.’ The libel was heard as an uncontested libel except on the question of alimony. On November 5, 1931, after hearing the libellant and her witnesses, the trial judge granted a divorce on the grounds of cruel and abusive treatment, and ordered the decree which follows to be entered: ‘It is decreed, nisi, that a divorce from the bond of matrimony between the said libellant and the libellee be granted the said libellant for the cause of cruel and abusive treatment on the part of the said libellee and that, upon and after the expiration of six months from the entry of this decree it shall become and be absolute, unless upon the application of any person interested, within such period, the court shall otherwise order, and it is further decreed in accordance with an agreement of the parties in open court that the ante-nuptial agreement between the said libellant and libellee dated February 9, 1928 and recorded in Middlesex South District Registry of Deeds Book 5215 page 422 be and the same hereby is declared to be null and void and in consideration thereof that the said libellee pay to said libellant the sum of three thousand dollars in lieu of all alimony past, present and future, the sum of four hundred dollars to be paid forthwith; the sum of ten dollars on Saturday the seventh day of November, A. D. 1931 and the further sum of ten dollars on each and every Saturday thereafter for a period of six months and the balance of said three thousand dollars with accumulations when said decree becomes absolute.’ It appears in evidence and in the report of the trial judge that the libellee has made ‘a considerable sacrifice in raising $3,000’ to meet the obligations of the decree.

On April 25, 1932, the libellant filed objections under divorce rule 4 of the probate court with six affidavits. Rule 4 reads: ‘At any time before the expiration of six months from the granting of a decree of divorce nisi, the libellee, or any other party interested, may file in the office of the register a statement of objections to an absolute decree, which shall set forth specifically the facts on which it is founded, and be verified by affidavit.’ It is plain that the words ‘any other party interested’ include a prevailing libellant and the trial judge so ruled. These affidavits warranted a finding that the decree nisi was granted through a misunderstanding between the libellant and her counsel, and that her intention at the time of the filing of the libel and always was to obtain a decree for separate support. The libellee was permitted to file an answer to the ‘objections' of the libellant, to the effect that he had no personal knowledge of the alleged objections nor of any allegations recited therein; that he had complied with the order of the court, had released all his right, title and interest in and to the real estate of the libellant which had been duly recorded; that he had further paid as directed by the court the sum of $3,000 to the libellant; that the decree that the libellant obtained was made in open court under the personal supervision, direction and instructions of the presiding judge; that the libellant voluntarily had executed a general release under seal discharging him and his estate from all debts, claims and demands whatsoever; and further set up as a bar to the right of the libellant to proceed in the matter of the hearing of her objections ‘by reason of a certain instrument dated the 9th day of November 1931 executed by the libellant ‘that I the said Palmira Nicolai formerly known as Palmira Botta will not at any time hereafter, or any person or persons in my behalf or with my authority, consent or procurement will institute any action or civil proceedings or process whatsoever against the said Romano Nicolai his personal representatives, either for alimony in the future as well as any cause arising from or growing out of any ante-nuptial agreement dated the ninth day of February 1928, and duly recorded with Middlesex So. District Deeds, book 5215, page 422, or from any cause heretofore existing or hereafter existing as my conjugal right or otherwise.’'

The attorney for the libellant who had acted for her during all the proceedings for divorce up to the time of her filing ‘objections' under rule 4, filed an affidavit of great length wherein he specifically denied the allegation of the libellant that the time the proceedings were instituted by the filing in court of the libel she intended to obtain a decree of separation and did not seek an absolute divorce.

The trial judge, after hearing the objections, found as a fact that the libellant knew that the proceedings before him were upon a divorce and not a separate support petition, that her counsel acted in good faith, and ‘his client was informed of everything that was being done for her and she was satisfied at the time’; but, the judge stated, ‘it is my opinion that since the decree nisi was entered she has been listening to other people and is now dissatisfied because she...