Sherrer v. Sherrer

Decision Date04 November 1946
Citation320 Mass. 351,69 N.E.2d 801
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
PartiesSHERRER v. SHERRER.

OPINION TEXT STARTS HERE

Proceedings by Edward C. Sherrer against his wife, Margaret E. Sherrer, for a decree adjudging that respondent had deserted petitioner and that he was living apart from respondent for justifiable cause and awarding petitioner the custody of the parties' two minor daughters. From decrees for petitioner, respondent appeals, and from an order denying petitioner's motion to dismiss one of the appeals, petitioner appeals.

Affirmed.Appeal from Probate Court, Berkshire County; Hanlon, Judge.

Before FIELD, C. J., and QUA, RONAN, WILKINS and SPALDING, JJ.

R. T. Capeless, L. S. Cain, A. W. Chesney, and R. A. Lewis, all of Pittsfield, for petitioner.

F. M. Myers, of Pittsfield, for respondent.

WILKINS, Justice.

These are two petitions in the Probate Court of Berkshire County, one for a decree that the respondent has deserted the petitioner and that the petitioner is living apart from the respondent for justifiable cause, and the other for the custody of two minor children. From decrees in favor of the petitioner the respondent appeals. The testimony is reported, and the judge in each case made a report of the material facts found by him. G.L.(Ter.Ed.) c. 215, § 11; Rubinstein v. Rubinstein, 319 Mass. 568, 569, 66 N.E.2d 793;Coe v. Coe, Mass., 69 N.E.2d 793.

1. We first consider an appeal of the petitioner from the denial of his motion to dismiss the respondent's appeal from the decree that the respondent has deserted the petitioner and that the petitioner is living apart from the respondent for justifiable cause. The motion was based upon an alleged failure to comply with G.L.(Ter.Ed.) c. 231, § 135, as amended, which requires that ‘the party having the obligation to cause the necessary papers * * * to be prepared shall give to the * * * register * * * within ten days after the case becomes ripe for final preparation and printing of the record for the full court, an order in writing for the preparation of such papers and copies of papers for transmission to the full court of the supreme judicial court.’ The decree was dated October 8, 1945. The respondent made no request of the judge to report the material facts, but the petitioner made such a request on October 11. On October 23 the respondent appealed and filed a transcript of the evidence. On the same day the register received from the respondent a letter containing the following: ‘Please prepare for transmission to the Supreme Judicial Court all papers required to present appeal of respondent in the matter of Edward C. Sherrer vs. Margaret E. Sherrer.’ This was ‘an order in writing’ within the meaning of G.L. (Ter.Ed.) c. 231, § 135. Bass River Savings Bank v. Nickerson, 302 Mass. 235, 237, 238, 19 N.E.2d 56. On November 8 the judge filed a report of the material facts found by him. As the decree was entirely in favor of the petitioner, and he was not aggrieved thereby, his request for a report of the material facts was not bt a party entitled to appeal’ under G.L.(Ter.Ed.) c. 215, § 11. Donovan v. Donovan, 223 Mass. 6, 7, 111 N.E. 607, and cases cited; Olsen v. Olsen, 294 Mass. 507, 509, 510, 2 N.E.2d 475;Walsh v. Justice of District Court of Springfield, 297 Mass. 472, 474, 9 N.E.2d 555;Ballard v. Maguire, 317 Mass. 130, 56 N.E.2d 891. See Murphy v. Donovan, 295 Mass. 311, 312, 313, 3 N.E.2d 734. The report of material facts in the case at bar must be taken to have been voluntary. It might never have been made. The mere possibility of its being made could not have availed the respondent as a reason for delay in ordering the preparation of the papers for transmission to this court. Indeed the petitioner does not contend that the order was not timely when given. His contention is rather that the case ceased to be ‘ripe for final preparationand printing of the record for the full court (Moskow v. Murphy, 310 Mass. 249, 37 N.E.2d 486), that the order was vitiated by the subsequent filing of the report of material facts, which was a necessary part of the record on appeal ( Boston Safe Deposit & Trust Co. v. Wickham, 254 Mass. 471, 473, 150 N.E. 223;Martell v. Moffatt, 276 Mass. 174, 177, 178, 177 N.E. 102;MacNevin v. MacNevin, 319 Mass. 719, 721, 67 N.E.2d 477), and that, therefore, the respondent should have given another order for the preparation of the record within ten days after the filing of the report. We do not sustain this contention. The case having once become ‘ripe for final preparation and printing of the record’ did not thereafter lose its ripeness in this respect by the making of a voluntary report of the material facts, even though such report had to be included in the record for this court. Any other conclusion would ‘promote confusion and uncertainty of practice’ (Hubbard v. Southbridge National Bank, 297 Mass. 17, 20, 8 N.E.2d 351, 352), and might result in nullifying a printed record at an indefinite future date.1

By way of precaution we state that we should not be understood as intimating that the requirement that the order be given ‘within ten days after the case becomes ripe for final preparation and printing of the record for the full court would preclude the giving of the order before the ten days started to run. See MacNevin v. MacNevin, 319 Mass. 719, 67 N.E.2d 477. See also Atherton v. Corliss, 101 Mass. 40;Young v. The Orpheus, 119 Mass. 179, 185;Reardon v. Cummings, 197 Mass. 128, 83 N.E. 361;Bay State Dredging & Contracting Co. v. W. H. Ellis & Son Co., 235 Mass. 263, 267, 268, 126 N.E. 468;Carey v. Casey, 245 Mass. 12, 139 N.E. 384;Reagan v. Mayor of Fall River, 260 Mass. 529, 531, 157 N.E. 522;Nevins v. Board of Public Welfare of Everett, 301 Mass. 502, 503, 17 N.E.2d 689. Compare Levine v. Finkelstein, 312 Mass. 483, 485, 45 N.E.2d 383.

There was no error in the denial of the petitioner's motion to dismiss the appeal.

2. We now consider the merits of the petition representing that the petitioner wishes to be enabled to convey his real estate as though he were sole, and alleging that the respondent has deserted the petitioner and that the petitioner is living apart from the respondent for justifiable cause. G.L.(Ter.Ed.) c. 209, § 36. We summarize facts as found by the judge or by ourselves. Lowell Bar Association v. Loeb, 315 Mass. 176, 178, 52 N.E.2d 27. The parties were married in 1930, in New Jersey, and from 1932 until April 3, 1944, lived together at Monterey in this Commonwealth. On the last mentioned date the respondent, stating that she was leaving for a month's rest, took their two minor daughters with the petitioner's consent to St. Petersburg, Florida. She arrived in Florida April 4. For three weeks she and the children occupied a rented apartment. Thereafter they successively occupied two rented furnished cottages in that city. About April 14, 1944, Henry A. Phelps of Monterey, who for some time had been an intimate friend of the respondent and an acquaintance of the petitioner, and who knew that the respondent had gone to Florida, went to St. Petersburg, where he saw the respondent very frequently. On April 20 the respondent wrote the petitioner, stating that she did not care to go back to live with him, and returning travel money he had sent her. On July 6 she consulted an attorney in Florida, and on the same day signed a bill of complaint for divorce on the ground of extreme cruelty, which alleged that she had been a bona fide resident of Florida for ninety days. The bill of complaint was filed in the Circuit Court of the Sixth Judicial Circuit of Florida in and for Pinellas County. About July 10 the petitioner by mail received formal ‘notice to appear’ by August 7. He retained Florida counsel, who entered a general appearance and filed an answer, which, among other things, denied the allegations as to residence. Later the petitioner went to Florida, arriving November 9. At that time the respondent was employed as a waitress in a restaurant in St. Petersburg, and Phelps worked there in a lumber yard. On November 14, 1944, there was a hearing in the divorce proceeding, during which the petitioner's attorney was present, but the petitioner remained ‘in a side room.’ The respondent's attorney read into the record a stipulation of the parties, which, subject to the approval of the court, provided that custody of the children should be in the petitioner during the school term of each year and in the respondent the remainder of each year. The respondent testified and was not cross-examined. The petitioner then entered the courtroom, and was questioned by the judge as to his ability to look after the children, and, when he had satisfied the judge in that respect, the hearing closed except for the deposition of a witness in corroboration of the respondent. On November 19 the petitioner returned to Monterey with the children. On November 29 the deposition was filed, and a final decree was entered awarding the respondent a divorce and awarding custody as stipulated. On December 1 the respondent and Phelps went through a marriage ceremony in Florida. They thereafter resided in the cottage which she had been occupying. Shortly after February 1, 1945, they came to Massachusetts, going first to Westfield, where Phelps's father was ill, and then to Monterey, where they arrived about February 5. There they occupied the house where the respondent and the petitioner had been living at the time of her departure for Florida. The petitioner was living with another family in Monterey. About February 12, 1945, Phelps was served with a summons in an action brought by the petitioner in the Superior Court, Berkshire County, for alienation of the affections of the respondent.

The judge found: ‘The respondent, in going to Florida, did not intend to make it her permanent home, but went there with the intention of meeting Mr. Phelps, obtaining a divorce from her husband, and then marrying Mr. Phelps. Her ultimate...

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9 cases
  • Heard v. Heard
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • November 3, 1948
    ... ... 1366;Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213. In [82 N.E.2d 224] this respect the case is distinguishable from the Coe 3 and Sherrer 4 cases, recently decided by the Supreme Court of the United States, in which it was held in part that the party attacking the jurisdiction of the ... ...
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    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • November 3, 1948
    ... ... S. C. 325 U.S. 226. Estin v. Estin, 334 U.S. 541. In ... this respect the case is distinguishable from the Coe ... [ 1 ] and ... Sherrer [ 2 ] cases, recently decided by the Supreme ... Court of the United States, in which it was held in part that ... the party attacking the ... ...
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    • United States
    • U.S. District Court — Virgin Islands
    • June 13, 1953
    ... ... However, beginning with the case of Sherrer v. Sherrer, 1948, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429, and Coe v. Coe, 1948, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451, the Court began to ... ...
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    • United States
    • U.S. District Court — Virgin Islands
    • June 13, 1953
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