Topor v. Topor
| Citation | 287 Mass. 473,192 N.E. 52 |
| Parties | TOPOR v. TOPOR. |
| Decision Date | 13 September 1934 |
| Court | United States State Supreme Judicial Court of Massachusetts |
OPINION TEXT STARTS HERE
Appeal from Probate Court, Hampden County; Davenport, Judge.
Libel for divorce by Wladyslaw Topor against Josephine Topor. From a decree nisi, granting a divorce to the libelant and ordering the libelee to convey to the libelant her interest in two parcels of land, the libelee appeals.
Reversed in part; affirmed in part.
Gerald T. Murphy, of Springfield, for appellant.
H. J. Burdick, of Palmer, for appellee.
The libellee in a libel for divorce has appealed from a decree nisi entered in the Probate Court granting a divorce to her husband on the ground of her adultery and ordering the libellee to convey to the libellant her interest in two parcels of land located in this Commonwealth. The evidence is not reported but the trial judge at the request of the libellee filed a ‘Report of material facts' under G. L. (Ter. Ed.) c. 215, § 11. Facts therein stated warranted the conclusion by the trial judge that the libellee was guilty of adultery (Dillon v. Dillon, 281 Mass. 423, 183 N. E. 707) and no argument to the contrary was here presented. The libellee contends that the judge, on the facts found by him, should not have included in the decree the provision requiring her to convey to the libellant her interest in the two parcels of real estate.
The judge in ordering such conveyance relied on the authority given by G. L. (Ter. Ed.) c. 208, § 34, which provides: ‘Upon a divorce, or upon petition at any time after a divorce, the court may decree alimony to the wife, or a part of her estate, in the nature of alimony, to the husband.’ Before the passage of St. 1857, c. 228, § 3, which in effect is the same as the present statute above quoted, there was no authority in a court having jurisdiction of divorce to make to the husband any award out of the wife's estate in the nature of alimony. The statute has not been construed by this court beyond the holding that it applies only to an absolute divorce and not to limited divorces formerly recognized by the statutes. Garnett v. Garnett, 114 Mass. 347. The statute does not provide that a part of the wife's estate may, upon divorce, be decreed to the husband on the theory of an equitable division of their properties as do statutes in some jurisdictions. What is taken from a wife's estate and is received by the husband under a decree based on our statute must be ‘in the nature of alimony.’ The word ‘alimony’ as used in our statutes carries the meaning of money or property which under order of court a husband provides for the support and maintenance of his wife and such minor children as are committed to her custody. Bucknam v. Bucknam, 176 Mass. 229, 57 N. E. 343,49 L. R. A. 735;Brown v. Brown, 222 Mass. 415, 416, 417, 111 N. E. 42;Rollins v. Gould, 244 Mass. 270, 272, 138 N. E. 815. From the nature of the word ‘alimony’ support or maintenance of the recipient is an essential element. An award of a portion of a wife's estate to her husband in order to be ‘in the nature of alimony’ as the statute requires, must be made on the theory that it is a provision for his support and maintenance. Authority to make such an award on any other theory is not given.
The general principles which govern the determination in a divorce case of the question whether alimony is to be awarded to the wife and if so its amount, are to be applied in determining whether an award from the wife's estate is to be decreed ‘in the nature of alimony’ to the husband. All the circumstances in a case including the necessities of the recipient and the pecuniary resources of the giver of property in the nature of alimony, the condition in life of the parties, their mode of living and their conduct should be taken into consideration. Brown v. Brown, 222 Mass. 415, 417, 111 N. E. 42;Graves v. Graves, 108 Mass. 314;Burrows v. Purple, 107 Mass. 428, 435. The judge's finding of material facts in the present case contains no finding as to any of these circumstances except that the libellee was guilty of adulterous conduct. The only other findings made by him which...
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Surabian v. Surabian
...5. Kahn v. Kahn, 353 Mass. 771, 233 N.E.2d 902. Specific property may be ordered transferred as payment of alimony. See Topor v. Topor, 287 Mass. 473, 192 N.E. 52; Klar v. Klar, supra. Further, a decree may require that alimony extend beyond the lifetime of the party ordered to make payment......
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...are all the facts which entered into his decree. In such cases there is no room for any implication of further findings. Topor v. Topor, 287 Mass. 473, 476, 192 N.E. 52;Goldston v. Randolph, Mass., 199 N.E. 896, 103 A.L.R. 1117. In the case of Cohen v. Nagle, 190 Mass. 4, at page 5, 76 N.E.......
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