Sheffer v. Sheffer
| Decision Date | 27 June 1944 |
| Citation | 316 Mass. 575,56 N.E.2d 13 |
| Parties | ADELE SHEFFER v. HENRY M. SHEFFER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
November 3, 1943.
Present: FIELD, C.
J., LUMMUS, QUA & RONAN, JJ.
Marriage and Divorce, Discontinuance of libel. Motive.
The right of a wife under G. L. (Ter. Ed.) c. 208, Section 21, as amended by St 1934, c. 181, Section 1, to have her libel for divorce dismissed before a decree nisi entered thereon had become absolute was not affected by the fact that her sole motive in seeking its dismissal was to secure an arrangement for her support different from that which was provided in the decree nisi in accordance with a previous agreement between the parties; that motive did not show bad faith on her part.
LIBEL for divorce filed in the Probate Court for the county of Suffolk on January 24, 1942.
After the entry of a decree nisi, a petition by the libellant to have the libel dismissed was heard by Dillon, J.
R. J. Hartford, for the petitioner-libellant.
S. Leventall, (A.
Leventall with him,) for the respondent-libellee.
The petitioner on March 30, 1942, was granted a decree nisi of divorce for desertion, the right to resume her maiden name and alimony in accordance with a written agreement executed January 10, 1942, in which her husband agreed to pay her $87.50 a month until a total of $4,500 was paid, the difference between the amount paid monthly and $4,500 to be paid when she obtained a decree absolute. She filed this petition on September 18, 1942, to vacate the decree nisi and to have the libel dismissed upon the grounds, as alleged, that she was incorrectly advised that it was necessary to prosecute a libel for divorce in order to secure a continuance of support from her husband, that she was ill at the time she executed the separate support agreement, and that she desired to effect a reconciliation with her husband. The judge found that the petition was not brought in good faith but was brought solely in order to secure a new agreement from her husband in reference to her support. The petitioner appealed from a decree denying the petition.
The petitioner contends that she was entitled as a matter of right to have the libel dismissed and the proceedings discontinued and that, while the judge might have imposed terms in granting the petition, he was without power to deny it.
The petitioner was the wife of the libellee when she filed the petition as the entry of the decree nisi did not change her marital status. Diggs, v. Diggs, 291 Mass. 399 . Vaughan v. Vaughan, 294 Mass. 164 . Her right to have the libel dismissed or to discontinue the proceedings after a decree nisi is not strictly governed by the principles prevailing in actions at law, Alpert v. Mercury Publishing Co. 272 Mass. 39; Curley v. Boston Herald-Traveler Corp. 314 Mass. 31 , or in suits in equity, Bolton v. Van Heusen, 249 Mass. 503; Gulesian v. Newton Trust Co. 302 Mass. 369 , for society itself has an interest in addition to that of the two parties of record, who in some cases are adversary parties merely as a matter of form and are both bent on securing a dissolution of the marital tie in order to satisfy their own personal desires and convenience. Marriage, however, is more than a contract, Coe v. Hill, 201 Mass. 15; Murray v. Murray, 255 Mass. 19, and society in furtherance of the public welfare is solicitous in encouraging and fostering the maintenance of the marital status and in preserving and protecting the existence and integrity of the family. Nicolai v. Nicolai, 283 Mass. 241 . French v. McAnarney, 290 Mass. 544 .
A party who has been granted a decree nisi ordinarily has the right to have the libel dismissed or the proceedings discontinued, at least where there is no cross libel or where the libellee has not gained some material advantage since the libel was filed which it would be inequitable to destroy by dismissing the libel. Nicolai v. Nicolai, 283 Mass. 241 , 247. Walton v. Walton, 86 Colo. 1, 10. Chamberlain v. Chamberlain, 108 Colo. 538. Stover v. Stover, 7 Idaho, 185. Coon v. Coon, 163 Mich. 644. Pickles v. Pickles, 70 R. I. 13. Forsby v. Forsby, 155 Wash. 33. compare Winans v. Winans, 124 N.Y. 140; Adams v. Adams, 57 Misc. (N. Y.) 150.
The right of the petitioner to a dismissal or a discontinuance is affected by G. L. (Ter. Ed.) c. 208, Section 21, as amended by St. 1934, c. 181, Section 1, which reads as follows: The amendment added the last sentence just quoted.
Under this statute the court, upon the filing of objections to the decree nisi becoming absolute, could after a hearing vacate or revoke the decree nisi for any cause sufficient in law. Sanderson v. Sanderson, 271 Mass. 386. Eldridge v. Eldridge, 278 Mass. 309 . The libellant in whose favor a decree nisi has been entered need not now, although he may, Nicolai v. Nicolai, 283 Mass. 241 , file objections to the entry of a decree absolute, for he may proceed in accordance with the amendment and file a motion or petition for a dismissal of the libel or a discontinuance of the proceedings, and the right that he had to relief in either form was not affected by the amendment except that the exercise of the right was subjected to the power of the court to impose such terms, if any, as it deemed just and reasonable. The right itself was not impaired but its exercise was regulated to the extent that the court might impose terms. The power to impose costs would not authorize the court to deny the petition for a dismissal or discontinuance or to impose terms of such a character as virtually to destroy the right. Under a statute, G. L. (Ter. Ed.) c. 185, Section...
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