Ross v. Ross

• Citation: 430 N.E.2d 815,385 Mass. 30
• Parties: Etta B. ROSS v. James W. ROSS, Jr. (and a companion case).
• Decision Date: 11 January 1982
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 815

430 N.E.2d 815

385 Mass. 30

Etta B. ROSS v. James W. ROSS, Jr. (and a companion case).

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Nov. 5, 1981.

Decided Jan. 11, 1982.

John W. Marshall, Boston (Gail Pennington, Brighton, with him), for James W. Ross, Jr.

Wayne H. Scott, Boston (Brian D. Bixby, Boston, with him), for Etta B. Ross.

Before HENNESSEY, C. J., and WILKINS, LIACOS, NOLAN and LYNCH, JJ.

NOLAN, Justice.

These cases involve appeals from two judgments and various interlocutory orders entered in the Probate Court for Middlesex County. Both cases were transferred to this court on our own motion. Since the two cases involve the same parties and their divorce proceeding, they have been consolidated for review. We affirm both judgments.

In the first case the husband appeals from a final judgment of the Probate Court which awarded the wife alimony, certain shares of stock, and counsel fees. The procedural background is as follows. On May 23, 1974, a probate judge entered a judgment nisi of divorce and granted the wife an alimony award of $100 a week. In August of 1974, the wife filed a complaint for modification pursuant to which her alimony was increased to $140 a week. In December of 1975, the wife filed another complaint against the husband, which resulted in the actions from which the husband has appealed. In this complaint, the wife requested that she be relieved of the outstanding alimony award pursuant to Mass.R.Dom.Rel.P. 60(b)(5) (1975), that she be granted a new hearing under G.L. c. 208, § 34, and that she be granted a new alimony award, as well as a division of property.

On December 17, 1976, a probate judge granted the wife's requests for relief from the divorce judgment and for a new hearing under G.L. c. 208, § 34, on the ground that "the prior judgment on which the judgment of May 23, 1974 was based, namely the judgment of November 23, 1971, had been reversed on appeal." See Mass.R.Dom.Rel.P. 60(b)(5). The judgment of May 23, 1974, was the original alimony award outlined above. The judgment of November 23, 1971, was an equity decree stemming from a complaint brought by the wife. The decree declared the wife to be the sole owner of certain real and personal property acquired during the marriage. Approximately two months after the entry of the judgment nisi the equity decree was reversed by the Appeals Court in Ross v. Ross, 2 Mass.App. 502, 314 N.E.2d 888 (1974), cert. denied, 420 U.S. 947, 95 S.Ct. 1329, 43 L.Ed.2d 425 (1975).

The probate judge referred the case to a master, who filed his report with findings of fact, conclusions of law, and recommendations in June, 1979. The judge, in April, 1980, issued "Findings On Confirmation of Master's Report" and a modification judgment. The master's findings of fact and conclusions of law were accepted, as well as his recommendation with respect to alimony. The court rejected the master's recommendation as to division of property and ordered a transfer of a portion of the husband's stock holdings to the wife. The court also ordered the husband to contribute a portion of the wife's counsel fees. It is from this modification judgment, as well as various interlocutory orders, that the husband is appealing.

The second case also arises from the marital difficulties of the parties. On July 14, 1970, the wife obtained a temporary order for separate support payments against her husband. In April, 1974, after arrearages had accumulated, the wife filed a petition for contempt, which was dismissed on May 23, 1974, when the judgment nisi of divorce was granted and the separate support petition dismissed. On January 16, 1980, the wife filed a new complaint for contempt seeking arrearages under the 1970 separate support order. This action was dismissed for failure to state a claim on which relief could be granted. The wife is appealing from that dismissal.

A complete description of the parties' married life and their accumulation of property during the marriage is available in Ross v. Ross, 2 Mass.App. 502, 314 N.E.2d 888 (1974). We summarize the facts as adopted by the probate judge from the master's report in the divorce case. The parties were married in 1950, when the husband was an undergraduate student. The wife then owned and managed two rooming houses. After graduation in 1951, the husband worked until 1953. The parties then moved to Wisconsin in order for the husband to attend graduate school. During the couple's stay in Wisconsin, the wife worked as a real estate broker and later operated her own real estate business. She also acted, with her husband, as a house parent in exchange for living quarters in a university dormitory.

In 1957, the parties moved to Massachusetts, where the husband secured a teaching position at the Massachusetts Institute of Technology. The wife has not worked since the move to Massachusetts. In 1962, the husband and others formed Orion Research Co., Inc. (Orion). Over the years, the husband has accumulated a number of shares of Orion stock. In 1962, the parties purchased a home in Newton.

The marriage started to deteriorate and in 1969 the husband left home and resumed a relationship with a woman he had been seeing a few years earlier. In 1970 the husband left his employment with Orion and moved to Nevada, where the woman joined him. We have already outlined the various court actions relating to the separate support order of 1970 and the 1974 divorce judgment nisi. The husband returned to Massachusetts in 1974 and resumed employment at Orion. He has remarried.

We first examine the issues raised by the husband's appeal. In reviewing the judge's decision to grant the plaintiff's request for relief from the judgment of May 23, 1974, pursuant to Mass.R.Dom.Rel.P. 60(b)(5), we are confined to determining whether the trial court abused its discretion. See Schulz v. Black, 369 Mass. 958, 336 N.E.2d 853 (1975); Neville v. American Barge Line Co., 218 F.2d 190 (3d Cir. 1954). We see no abuse of discretion.

The judge granted the wife relief from the divorce judgment because "the prior judgment on which the (divorce) judgment of May 23, 1974 was based, namely the (equity) judgment of November 23, 1971, had been reversed on appeal." See supra at 817. Thus, the judge based his grant of relief on the ground that "a prior judgment upon which it (was) based (had) been reversed or otherwise vacated." Mass.R.Dom.Rel.P. 60(b)(5) (1975).

It is apparent that in making the May 23, 1974, alimony award the judge relied in part on the 1971 equity decree, subsequently reversed. We hold that there was a sufficient nexus between the divorce judgment and the equity decree to rule that the latter formed the basis for the former. Rule 60(b)(5) is addressed to just such a circumstance. ¹ Substantive relief from the divorce judgment was appropriate in this case.

Having held that the probate judge did not err in granting the wife relief from the original divorce judgment, we turn to whether G.L. c. 208, § 34, was properly applied to this case.

The husband argues that since the judgment nisi was issued on May 23, 1974, and the "new" § 34 (see St. 1974, c. 565) did not become effective until October 17, 1974, the "new" § 34 could be applied to this case only if it were given retroactive application. We disagree.

We need not reach the issue of retroactivity here as the application of § 34 to this case is not retroactive. Notwithstanding the fact that a judgment nisi is a judgment of divorce, G.L. c. 208, § 21, we hold that a couple is not divorced until the judgment becomes absolute. "Divorce is the legal dissolution of a valid existing marriage ...." J. F. Lombard, Family Law § 1440 (1967). In Massachusetts a judgment nisi is not a dissolution of the marriage. Pine v. Pine, 323 Mass. 524, 83 N.E.2d 171 (1948). Sparhawk v. Sparhawk, 114 Mass. 355 (1874). Thus, a second marriage contracted during the interval between the judgment nisi and the judgment absolute is void. Levanosky v. Levanosky, 311 Mass. 638, 42 N.E.2d 561 (1942). If either party dies before the judgment becomes absolute, the proceedings for divorce are abated, Pine v. Pine, supra, and the surviving spouse is entitled to statutory rights in the estate. See Vaughan v. Vaughan, 294 Mass. 164, 200 N.E. 912 (1936).

As a consequence, the parties in this case were not divorced on October 17, 1974, the date the amended § 34 became effective. We hold, therefore, that the probate judge was correct in applying § 34 to this divorce action. ²

General Laws c. 208, § 34, empowers the courts to make an equitable division of property incident to a divorce proceeding. The court must set out and consider all the mandatory factors enumerated in the statute when making its award ³ and may consider several other criteria. ⁴ Brady v. Brady, --- Mass. ---, ---, Mass.Adv.Sh. (1980) 1053, 1060, 404 N.E.2d 75. Bianco v. Bianco, 371 Mass. 420, 422-423, 358 N.E.2d 243 (1976). Once the judge has weighed all the considerations, he must use his discretion in awarding alimony or assigning estate assets. Rice v. Rice, 372 Mass. 398, 401, 361 N.E.2d 1305 (1977).

The husband argues that the probate judge failed to comply with the requirements of § 34. While admitting, as he must, that upon reference the master made all the mandatory findings and, further, that the judge accepted and confirmed those findings, the husband nevertheless maintains that the judge did not consider all the criteria outlined in § 34. The husband insists that a "careful reading" of the judge's findings indicates that he considered only the conduct and contributions of the husband and wife. We have carefully read the judge's findings and hold that he did, in fact, adequately consider all the factors.

The language of Mass.R.Dom.Rel.P. 52(a) (1975) is clear: "The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court." The probate judge accepted and...