Slavinsky v. Slavinsky

• Decision Date: 05 June 1934
• Citation: 287 Mass. 28,190 N.E. 826
• Parties: SLAVINSKY v. SLAVINSKY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

287 Mass. 28

190 N.E. 826

SLAVINSKY

v.SLAVINSKY.

Supreme Judicial Court of Massachusetts, Middlesex.

June 5, 1934.

Appeal and Report from Probate Court; J. C. Leggat, Judge.

Libel for divorce by Raymond H. Slavinsky against Josephine M. Slavinsky. From a decree nisi of the probate court granting a divorce and giving the care and custody of minor child of parties to libelee, libellee appeals, and the probate judge resports the material facts found.

Reversed.

P. J. Delaney and R. T. Delaney, both of Cambridge, for appellant.

M. Palais, of Boston, for appellee.

RUGG, Chief Justice.

This libel comes before us on appeal by the libellee from a decree granting the divorce and giving the care and custody of the minor child of the parties to the libellee. There is a report of material facts found by the probate judge. G. L. (Ter. Ed.) c. 215, §§ 9, 11, 12. Drew v. Drew, 250 Mass. 41, 144 N. E. 763. The evidence is not reported. This libel was brought on November 9, 1933, by the husband against his wife on the ground that she deserted him on or about October 31, 1930. Prior to the filing of the libel, the wife brought separate support proceedings against the husband. The allegations of that petition were that the husband failed without just cause to support her, and had deserted her, and that she was living apart from him for justifiable cause, with the following specifications: ‘Cruel and abusive treatment. Neglect to furnish a home for your petitioner and minor child.’ On October 9, 1930, decree was entered adjudging that she was actually living apart from him for justifiable cause. The grounds for that decree were not set out in further detail in the record in that case. Certain payments for her support were ordered to be made by him. Those payments have been made.

The probate judge filed a report of material facts pursuant to request of the libellee under G. L. (Ter. Ed.) c. 215, § 11. After reciting the facts already narrated, he stated that upon the trial of the present libel (which was uncontested by the libellee although an appearance and answer were filed in her behalf), the libellant testified that on or about October 31, 1930, accompanied by his sister he met his wife by appointment; ‘that in the presence of his sister, the libellant talked with his wife and requested her to return and live with him again and promised to provide a home for her and their child; the libellant stated that he was willing and able to provide this home for them; the libellee stated to him that she would not live with him again, because she had some one else who was better than he. The libellant's sister testified corroborating the testimony of the libellant. It also appeared at the hearing that the court inquired about the support and custody of the minor child, and counsel for the libellant informed the court that the wife had the custody of the minor child and that the libellant would waive his right thereto, but would continue to make the payments for its support. I found that the offer made on October 31st, 1930, by the libellant to provide a home and to return and live with his wife was made in good faith. I found that the libellant was willing and able to properly care for his wife and child. I entered a decree nisi.’ These are all the facts reported.

The decree of the Probate Court in the petition for separate support by the wife, declaring that she was living apart from him for justifiable cause, cannot be attacked collaterally and is binding and conclusive upon the parties to this proceeding as to all matters which were put in issue connecessarily involved in that proceeding. G. L. (Ter. Ed.) c. 209, § 32; Miller v. Miller, 150 Mass. 111, 22 N. E. 765;Watts v. Watts, 160 Mass. 464, 36 N. E. 479,23 L. R. A. 187, 39 Am. St. Rep. 509;Austin v. Austin, 233 Mass. 528, 124 N. E. 421;Williamson v. Williamson, 246 Mass. 270, 274, 140 N. E. 799. That principle is not precisely applicable to the case at bar because the cause for divorce alleged in the present libel occurred twenty-two days later than the decree in the separate supportpetition. In Barney v. Tourtellotte, 138 Mass. 106, in discussing this statute for separate maintenance founded on a living apart by the wife from her husband for justifiable cause, it was said: ‘It does not give the Probate Court the right to decree a judicial separation, and thus to create a new status of the parties. The only judicial separation known to our laws was that created by a divorce a mensa et thoro under our old practice. Such a divorce suspended the marriage status, and created a new relation between the parties of a fixed and permanent character, which could only be terminated by the mutual consent of both parties, or by a subsequent decree making the divorce a divorce a vinculo. A decree under this statute has not the elements of a judicial separation. It does not suspend the marriage status; it affects to a limited extent the rights and duties of the parties, but they remain in the marriage status as before, with all the rights and duties of husband and wife, except so far as they are modified by the decree; it does not authorize the wife to live permanently apart from her husband, nor establish a relation which she has a right to maintain until she consents to change it; if her husband removes the cause of the separation, it would be her duty to return to him, and it would be the duty of the court to revoke its decree. It recognizes the fact that she is living apart from her husband, adjudicates that she has justifiable cause, and provides for her protection and support while so living; but it cannot be said to create or determine a new status of the parties within the sense in which the term status is used in the law.’...