Rosa v. Rosa

• Decision Date: 30 December 1936
• Citation: 5 N.E.2d 417,296 Mass. 271
• Parties: ROSA v. ROSA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

296 Mass. 271

5 N.E.2d 417

ROSA v. ROSA.

Supreme Judicial Court of Massachusetts, Bristol.

December 30, 1936

Action by Ellen M. F. Rosa against Henry A. Rosa, wherein a decree for separate support for plaintiff was entered. From a final decree of divorce terminating the decree for separate support, plaintiff appeals.

Modified and affirmed.

Appeal from Probate Court, Bristol County; Hitch, Judge. A. E Seagrave and A. E. Beaulieu, both of Fall River, for petitioner.

C. N Serpa, of New Bedford, and M. Levy, of Newport, R. I., for respondent.

FIELD Justice.

The Probate Court for the county of Bristol on November 11, 1908 on the petition of Ellen M. F. Rosa, of Fall River, entered a decree against her husband, Henry A. Rosa, for her separate support until the further order of the court. On March 14, 1919, a decree was entered modifying the earlier decree in respect to the amounts to be paid by the husband. Henry A. Rosa thereafter petitioned for the termination of the decree for separate support and on September 11, 1936, a decree was entered in said court reciting that ‘ a final decree of divorce was entered in the Superior Court of the State of Rhode Island, on July 15, 1936, and * * * the said Henry A. Rosa and the said Ellen M. F. Rosa are no longer husband and wife,’ and decreeing that ‘ said decree of this Court of December 18, 1908, as modified by dedree of March 14, 1919, be terminated.’ Ellen M. F. Rosa appealed. The judge made a report of material facts, but the evidence is not reported.

There was no error.

The power conferred by G.L.(Ter.Ed.) c. 209, § 32, on a probate court entering a decree for the separate support of a wife to ‘ make further orders relative to the support of the wife and * * * from time to time * * * [to] revise and alter such order or make a new order or decree’ extends to the termination of the decree on an adequate ground arising after such decree was entered. Gifford v. Gifford, 244 Mass. 302, 305, 138 N.E. 550; Williamson v. Williamson, 246 Mass. 270, 140 N.E. 799. Proceedings for separate support ‘ are designed to secure the temporary support of a wife * * * while the marriage relation exists and the cause for separation continues.’ Doole v. Doole, 144 Mass. 278, 279, 280, 10 N.E. 811, 814. See, also, Barney v. Tourtellotte, 138 Mass. 106, 108, 109; Slavinsky v. Slavinsky, 287 Mass. 28, 31, 190 N.E. 826. Separate support is dependent on the existence of the marriage relation. Termination of that relation by a divorce decreed in another jurisdiction, vaild and effectual in this Commonwealth, entitles the husband to be discharged from his liability for payments, under the decree for separate support, which had not become due at the time of the divorce. See Bloedorn v. Bloedorn, 64 App.D.C. 199, 76 F.(2d) 812, 814. We need not inquire whether a divorce discharges the husband from such a liability without a decree to that effect (see Harrison v. Harrison, 20 Ala. 629, 649, 56 Am.Dec. 227; McCullough v. McCullough, 203 Mich. 288, 294, 295,168 N.E. 929. See, also, McIlroy v. McIlroy, 208 Mass. 458, 463, 464, 94 N.E. 696, Ann.Cas.1912A, 934; Maloof v. Abdallah, 218 Mass. 21, 23, 105 N.E. 438) for, even if it does, a decree recognizing the effect of the divorce by terminating, as to amounts not already due, the decree for separate support would not be improper.

On the findings of the probate judge the marriage relation between the parties was terminated by a divorce decreed in Rhode Island, valid and effectual in this Commonwealth. An interlocutory decree of divorce was entered in the Superior Court of Rhode Island on January 14, 1936, and a final decree on July 15, 1936. The probate judge found ‘ that the relation of husband and wife ceased on the entry of said final decree of divorce on July 15, 1936.’ The specific facts stated are not inconsistent with this conclusion. See Columbian Insecticide Co. of Boston v. Driscoll, 271 Mass. 74, 77, 170 N.E. 804. The judge found that ‘ the proceedings in the divorce case were regular and in accordance with the law of Rhode Island.’ The statutes of that State authorized the entry of ‘ a decree divorcing the parties from the bond of marriage’ if they had ‘ lived separate and apart from each other for the space of at least ten years.’ General Laws of Rhode Island 1923, c. 291, § 3. The divorce was granted on this ground, the court granting it having found that the parties had lived separate and apart for twenty-six years.

The judge found further that the domicil of Henry A. Rosa ‘ has been in Portsmouth, Rhode Island, since November 1932,’ and the subsidiary findings, which need not be discussed in detail, are consistent with this finding. Henry A. Rosa, though previously domicile in Fall River, according to the findings of the judge, ‘ in the latter part of 1932 * * * made his permanent home’ in Portsmouth, Rhode Island, and ‘ when he moved to Portsmouth he did not do so for the purpose of obtaining a divorce but with the intention of making his permanent domicile there.’ Fact and intent concurred. See Ness v. Commissioner of Corporations and Taxation, 279 Mass. 369, 372, 181 N.E. 178, 82 A.L.R. 977. The judge found that a ‘ citation was issued to and served upon Ellen M. F. Rosa by delivery to her personally in Provincetown, in the State of Massachusetts, on August 26, 1935, all in accordance with the...