Smith v. Smith
| Decision Date | 15 January 1971 |
| Citation | 265 N.E.2d 858,358 Mass. 551 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Dorothy D. SMITH v. Stewart R. SMITH. |
Efrem A. Gordon, Springfield, for libellee, submitted a brief.
Norman C. Hansen, Boston, for libellant.
Before TAURO, C.J., and SPALDING, CUTTER, REARDON and QUIRICO, JJ.
The parties to this proceeding were divorced by a decree nisi (which has subsequently become absolute) on February 6, 1968. At the time the decree was entered the parties filed a separation agreement which they had entered into through trustees, dated September 26, 1967, covering, among other things, matters relating to property and support. This agreement was 'incorporated' in the divorce decree and 'made part * * * (thereof) by reference.' Under the agreement the libellee (husband) was to pay $30 a month for each of two minor sons until they should become twenty-one; he also agreed to provide for their college education. The libellant (wife) was to receive $697 monthly for her support, but in no event was she to receive more than one half of the husband's net income after State and Federal income taxes.
On May 27, 1969, the husband filed a pleading entitled 'Petition for Modification.' It contained a prayer that the agreement which was incorporated by reference in the divorce decree be declared null and void 'as being illegal and contrary to * * * public policy,' and a prayer for general relief. Additional grounds alleged in the petition for setting aside the agreement were that the husband did not understand it; that his health was such as to make the support provisions unfair; and that there had been substantial changes in the financial situation of the husband and wife since the divorce decree was entered.
The findings of the judge need not be set forth at length. 1 They dealt for the most part with the financial resources and requirements of the wife, and the husband's current earning power. After setting forth these matters in considerable detail, the judge concluded that From a review of the evidence, we are of opinion that the findings and conclusions of the judge cannot be said to be plainly wrong.
The principal argument of the husband is that the agreement was collusive and should have been declared void on grounds of public policy. In support of this argument the husband directs our attention to paragraph 12 of the agreement which provides that the 'wife shall forthwith proceed with a libel for divorce on the ground of cruel and abusive treatment * * *, and the Husband will not contest said libel.' Such an agreement, it is argued, is a collusive compact to compel the court to act upon a partial disclosure...
To continue reading
Request your trial
-
Binder v. Binder
...the agreement does not stand as a bar to such a reduction. Wilson v. Caswell, 272 Mass. 297, 172 N.E. 251 (1930); Smith v. Smith, 358 Mass. 551, 553, 265 N.E.2d 858 (1971). Salvesen v. Salvesen, 370 Mass. 608, 610-611, 351 N.E.2d 499 (1976); Knox v. Remick, 371 Mass. 433, 435, 358 N.E.2d 43......
-
Gunter v. Gunter
...which no appeal was taken) referred to the agreement and purported to incorporate the same by reference (see Smith v. Smith, 358 Mass. 551, 553--554, 265 N.E.2d 858 (1971)), we think it did so only by way of explaining why no order was being entered for the support of the wife and minor chi......
-
Salvesen v. Salvesen
...which no appeal was taken) referred to the agreefment and purported to incorporate the same by reference (see Smith v. Smith, 358 Mass. 551, 553--554, 265 N.E.2d 858 (1971)), we think it did so only by way of explaining why no order was being entered for the support of the wife and minor ch......
-
Manes v. Manes
...Probate Court of its power to modify its decree relating to alimony for the wife or support for the children.' Smith v. Smith, 358 Mass. 551, 553, 265 N.E.2d 858, 859 (1971). The court had jurisdiction to interpret its prior decree and to modify it. G.L. c. 208, §§ 28, 37. Cf. Whitney v. Wh......