Smith v. Smith

• Decision Date: 02 March 1906
• Parties: SMITH v. SMITH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

190 Mass. 573

77 N.E. 522

SMITH v. SMITH.

Supreme Judicial Court of Massachusetts, Suffolk.

March 2, 1906

COUNSEL

Hamilton & Eaton, for appellant.

James R. Murphy, for appellee.

OPINION

LORING J.

This was a petition for additional alimony. A divorce was granted on January 9, 1903, to the respondent, the husband, for gross and confirmed habits of intoxication on the part of the petitioner here (originally the libelee). In the decree for divorce the question of alimony was reserved for future consideration. On February 18, 1903, a decree was made directing the respondent here (the libelant in the original proceedings) to pay to the libelee (the petitioner here) 'as alimony the sum of $25 per week for two years from the date of the decree nisi, to wit, January 19, A. D 1903.' After the expiration of said two years, to wit, on February 11, 1905, the petition for additional alimony was filed. The material allegations of the petition are 'That your petitioner is without means of support; that your petitioner is unable, by reason of ill health and bodily weakness, to support herself; that said Louis E. P. Smith is of ample ability to contribute to the support of your petitioner, his former wife.' On this petition the following order was made on April 1, 1905. 'The form of the order or decree in respect to alimony made by the late Chief Justice Mason on February 18, 1903, indicates that he intended that the alimony then ordered to be paid, should be in full for all alimony to which the petitioner was entitled but this is not entirely clear, and by reason of the present condition of the petitioner, it is ordered that the respondent Louis E. P. Smith, pay to the petitioner Adelaide D. Smith, $15 per week for one year from February 18, 1905, the same payable weekly.' From this order an appeal was duly taken to this court.

It is not necessary to decide whether the original decree in the case at bar was a final adjudication on the alimony to be paid. If this order is taken to have been a final adjudication upon the question of alimony (using that word to mean payments at stated periods), in case there was a change after the date of the decree in the circumstances of the parties or either of them, which in justice required that additional alimony should be paid, the court could make the order for further alimony. It is not necessary in the case at bar, to consider what the rule is in case of a decree or order for the payment of a sum in gross by way of alimony. Alimony, like the custody of children (as to which see Rev. Laws, c. 152, § 25), is a matter which from its very nature cannot be finally disposed of. If, for example, a large annual allowance by way of alimony were made to a wife, to be paid by a wealthy husband, and, without his fault, the husband afterwards should be reduced to penury, there ought to be power in the court to make such change in the alimony decreed to be paid by him as the change in his circumstances requires. Such is the rule at common law in England (De Blaquiere v. De Blaquiere, 3 Hagg. Ecc. 322), and, by statute at least, in this Commonwealth. By Rev. St. 1836, c. 76, § 36 (following a less explicit provision in St. 1785, p. 565, c. 69, § 5), it is provided that 'after any decree of alimony, * * * the court may from time to time on petition of either of the parties revise and alter their decree respecting any of said matters which they might have made in the original suit.' This has been re-enacted...