Sparhawk v. Sparhawk

• Decision Date: 21 June 1876
• Citation: 120 Mass. 390
• Parties: Mary S. Sparhawk v. George Sparhawk
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

120 Mass. 390

Mary S. Sparhawk v. George Sparhawk

Supreme Court of Massachusetts

June 21, 1876

Argued January 29, 1876.

Middlesex. Petition, filed at October term 1874, to make absolute a decree of divorce nisi obtained by the petitioner against the respondent at April term 1872, for extreme cruelty; and to award her a gross sum in full of all alimony, and instead of the sum of $ 4000 annually, as ordered by the court at April term 1873.

The divorce was accordingly made absolute; and at the hearing upon the question of alimony, the respondent "contended that it is a general rule in equity that in all cases when the former wife applies for alimony on the ground of cruelty her own conduct must not be impeachable with such violence or soevitia as might provoke her husband to retaliate; and offered evidence to substantiate the position." Ames J., ruled that such evidence was not admissible in this proceeding and at this stage of the case; and the respondent alleged exceptions to this ruling, which were argued in January, 1876.

Appeal dismissed.

G Sparhawk, pro se.

H. G Parker, for the petitioner.

Ames, J., Gray, C. J. Colt & Endicott, JJ., Devens, JJ., absent.

OPINION

Ames; Gray

Ames, J. This motion was heard and considered by the court as if it were merely an attempt to settle upon a sum in gross which should be as nearly as possible an equivalent, considering the age and expectation of life of the respective parties, for the annual allowance already decreed to the wife as alimony. But we are satisfied that this was an erroneous view of the case. If the libellant thought proper to open the subject of alimony by a motion to change the form of the allowance, it rendered it proper and necessary for the court to consider, not only what would be a proper substitute, as an equivalent for the sum already ordered as a matter of periodical payment, but also what the special circumstances of the case required. Upon such a motion, not only the decree for alimony may be revised for the reason of altered circumstances of either or both of the parties, but also the former relations and conduct of the parties, the circumstances of the separation, and the facts upon which any former decree was founded, as well as any new facts bearing upon the question, may be taken into consideration. Graves v. Graves, 108 Mass. 314. It follows that the

Exceptions must be sustained.

The matter was then further heard before Ames, J., who entered a decree awarding to the petitioner alimony in gross in the sum of $ 30,000. From this decree the respondent appealed, and the appeal was argued in June, 1876.

H. G. Parker, for the petitioner.

G. Sparhawk, pro se, contended that the judge hearing the case should have reported the evidence to the full court; that under the Gen. Sts. c. 107, § 53; c. 113, §§ 8, 21, the case might be reheard on the evidence; and that the evidence would show that the amount of alimony awarded was too large.

This appeal is founded upon a misapprehension of the statutes which regulate the practice of this court in the exercise of the different branches of its jurisdiction.

In cases within its jurisdiction in equity or in probate, an appeal lies in matter of fact as well as in matter of law but if no request is made, at the hearing before a single justice, for...