Oakes v. Oakes
| Decision Date | 01 February 1929 |
| Citation | 266 Mass. 150,165 N.E. 17 |
| Parties | OAKES v. OAKES. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Probate Court, Norfolk County; Joseph R. McCoole, Judge.
Proceeding for divorce by Grace E. Oakes against Walter E. Oakes. Decree for alimony for libelant when she was granted divorce was modified by decree of the probate court, and libelant appeals. Affirmed.
F. W. Campbell, of Boston, for appellant.
D. W. Corcoran, of Boston, for appellee.
This is an appeal by the libelant in a divorce proceeding from a decree of the probate court entered September 10, 1928, which modified a decree for alimony entered for the libelant on December 12, 1923, when she was granted a divorce nisi which subsequently became absolute. At the time the decree nisi was entered the parties made a written agreement providing that the husband should pay the libelant $125 each month for a period of six months, and thereafter, as long as the libelant remained unmarried, the sum of $108.34 each month. In the original decree it was stated that the libelee ‘be ordered to pay alimony in accordance with the agreement on file.’ In the decree of September 10, 1928, it was ordered that the monthly payments be reduced ‘from $108 to $50 per month until the further order of this court.’ The probate court was authorized to revise and alter its decrees concerning alimony, and ‘make any decree relative thereto which it might have made in the original suit.’ G. L. c. 208, §§ 34, 37.
There was no report of the evidence. On the facts found by the judge, there was no error in the decree modifying the original decree. The so-called agreement between the husband and wife did not in any way deprive the court of its power and jurisdiction to alter its former decree providing for the amount of alimony to be paid. The agreement was between husband and wife, and was a nullity. G. L. c. 209, § 2. The judge, in deciding the amount of alimony, is to act on his own responsibility. Even where there is a contract between the husband and wife with a trustee, as in Kerr v. Kerr. 236 Mass. 353, 128 N. E. 409, the power and duty of the court are not taken away by such an agreement. The judge may give due consideration to such contracts when they are free from fraud, collusion, or coercion, but his power is not abrogated. He is required to use his sound discretion and best judgment in passing on the question. He could under the statute modify the former decree, and if in...
To continue reading
Request your trial
-
Rhinehart v. Rhinehart, 2023
... ... on account of change of condition of the parties. Warren ... v. Warren, 116 Minn. 458, 133 N.W. 1009; Oakes v ... Oakes, 266 Mass. 150, 165 N.E. 17; Lewis v ... Lewis, 53 Nev. 398, 2 P.2d 131; Shoop v. Shoop, ... 58 S.D. 593, 237 N.W. 904; ... ...
-
Binder v. Binder
...370 Mass. 608, 610-611, 351 N.E.2d 499 (1976); Knox v. Remick, 371 Mass. 433, 435, 358 N.E.2d 432 (1976). See also Oakes v. Oakes, 266 Mass. 150, 152, 165 N.E. 17 (1929). A reduction in the support mandated by the judgment is not incompatible with the agreement of the parties, 3 the higher ......
-
Wilson v. Caswell
...it was intimated that the agreement if valid with reference to divorce proceedings would not limit the power of the court. In Oakes v. Oakes (Mass.) 165 N. E. 17,Southworth v. Treadwell, 168 Mass. 511, 47 N. E. 93, AND Brown v. Brown, 222 Mass. 415, 111 N. E. 42, the agreements involved wer......
-
Knox v. Remick
...to be paid, although the terms of the agreement may prompt a judge in his discretion not to modify the order. See Oakes v. Oakes, 266 Mass. 150, 152, 165 N.E. 17 (1929). Such a reduction in mandated support payments removes the threat of contempt proceedings against the obligated spouse to ......