Turgeon v. Turgeon

• Citation: 330 Mass. 402,113 N.E.2d 821
• Parties: TURGEON v. TURGEON.
• Decision Date: 07 July 1953
• Court: United States State Supreme Judicial Court of Massachusetts

Page 821

113 N.E.2d 821

330 Mass. 402

TURGEON v. TURGEON.

Supreme Judicial Court of Massachusetts, Hampden.

Argued May 7, 1953.

Decided July 7, 1953.

Morris Michelson and M. Arthur Gordon, Boston, for plaintiff.

Frank J. McKay, Holyoke, for defendant.

Before QUA, C. J., and LUMMUS, RONAN, SPALDING and COUNIHAN, JJ.

COUNIHAN, Justice.

This is a bill of complaint in which the plaintiff, who is the wife of the defendant, seeks to establish her interest in certain real estate, certain money, and the assets of a business which the defendant personally conducted under the name and style of Holyoke Beef Company. The case was here before. Turgeon v. Turgeon, 326 Mass. 384, 94 N.E.2d 769. The allegations of the bill are set forth there. We reversed the final decree and the interlocutory decree confirming the master's report and remanded the suit to the Superior Court for further proceedings.

The suit was then heard by a judge who made 'Findings of Fact, Rulings and Order.' The evidence before this judge is reported. We summarize his findings. The parties were married on October 11, 1930. She was a widow and he a widower. On January 1, 1935, his employment as manager of a packing company in Holyoke was terminated. The plaintiff had approximately $4,500, the proceeds of insurance on the life of her former husband, and the defendant was without funds except for a small amount. They agreed to go into the meat business together each sharing equally in the profits, and she furnished initially $2,000 and later approximately $2,092 out of the balance of her insurance money. He was to furnish his experience and labor. The business was carried on by him in the name of Holyoke Beef Company and a business certificate to that effect was filed in the office of the city clerk of Holyoke. G.L.(Ter.Ed.), c. 110, § 5. At first he sold meats from a truck to stores. Subsequently a wholesale store was opened and the business was extended. The checking accounts of the business were in his name and he signed all checks. The plaintiff assisted part time in running the business by keeping the books, making deposits in banks, and filing out financial statements. The business prospered and from time to time profits were withdrawn and deposited in joint savings accounts payable to the survivor. Four parcels of real estate in Holyoke were acquired, payments being made from such savings deposits and thembusiness checking accounts. Title to this real estate was taken in the name of both as tenants by the entirety, but neither of them knew the legal significance of 'tenants by the entirety' as distinguished from 'joint tenants.' Purchase money mortgages on three of these parcels were discharged with money taken out of the business. Mortgages and mortgage notes on all these parcels were signed by both.

In the latter part of 1944 marital differences arose between them, and on January 13, 1945, the plaintiff left the defendant and has had nothing to do with the conduct of the business since then.

The judge found and ruled 'that at all times up to January 13, 1945, the plaintiff and the defendant were equitable tenants in common of all the net assets of the Holyoke Beef Company and I rule that in equity the plaintiff is entitled to one half of the net assets of the Holyoke Beef Company as they were on January 13, 1945. I rule that the defendant holds one half of the net assets of the Holyoke Beef Company as they were on January 13, 1945, upon a resulting trust for the plaintiff. I rule that the plaintiff is not entitled to any net assets of the Holyoke Beef Company which accrued after she left the business on January 13, 1945. * * * I therefore order that further hearings be held for the purpose of determining the value of the net assets of the Holyoke Beef Company on January 13, 1945, and for the entry of a final decree thereafter.' From these findings of fact, rulings and order both parties appealed. These appeals have no standing and we do not consider them. G.L.(Ter.Ed.) c. 214, §§ 19, 26. Carilli v. Hersey, 303 Mass. 82, 87, 20 N.E.2d 492.

Subsequently a second judge referred the case to a master 'to hear the parties, find the facts and report his findings to the court, together with such questions of law, arising in the course of his duty, as any party may request, as to the value on January 13, 1945, of the net assets of the defendant d/b/a Holyoke Beef Company and the value of the one half interest of the plaintiff in the said net assets which one half interest is held in trust by the defendant for the plaintiff * * *.' The master filed a voluminous report in which he made many subsidiary findings of fact and concluded by finding 'the value of the plaintiff's one-half interest in such net assets with six per cent interest from January 13, 1945, to October 15, 1951, to be $32,742.39.'

With reference to certain money which the plaintiff alleged the defendant personally withheld from the receipts he found: 'On all pertinent evidence before me, I conclude and find that there was a substantial withholding of cash during the year 1944 from the cash receipts of the business, paid by customers in cash or currency, through the withholding of sales slips for sales paid for in cash or currency, and of the cash so paid by customers, in which the plaintiff and defendant participated, and that these receipts paid in cash or currency were not entered on the books of record of the business through their combined, voluntary action. On all the oral and documentary evidence submitted to me, I am unable to find, with any approximation to accuracy, the amount so withheld. Determination of any amount, by approximation or otherwise, is so conjectural that I am unable to make findings as to the exact or approximate total amount so withheld. I reach the same conclusion, whereever the burden of proof may rest as to evidence in this regard.' He declined to receive any evidence as to the value of the four parcels of real estate hereinbefore referred to and he made no finding as to the value of this real estate, apparently because of his interpretation of the order of reference to him and of the 'Findings of Fact, Rulings and Order' of the judge who first heard this suit.

The plaintiff filed 'Objections' to the master's report, a 'Motion to Recommit' and a 'Motion to Strike Out.' From a denial of these motions by a third judge the plaintiff claimed appeals.

A fourth judge entered an interlocutory decree confirming the master's report on August 11, 1952, and on August 12, 1952, entered a final decree. This decree inter alia ordered the defendant to pay the plaintiff the sum of $33,895.67 which included interest from January 13, 1945, to the date of the decree. He also ordered the defendant to pay the plaintiff the sum of $4,993.54 additional on account of certain accumulations from the business, belonging to the plaintiff and the defendant in equal shares and standing in both their names on January 13, 1945, now held or appropriated by the defendant. This amount included the value of certain war savings bonds, certain shares of stock in the American Bosch Corporation and the proceeds of certain joint savings accounts, with interest from the date of filing of the bill to the date of the decree. No reference was made in the final decree to the value of the real estate above referred to or to the other money which the plaintiff alleged the defendant improperly appropriated from the receipts of the business.

From the interlocutory decree confirming the master's report the defendant claimed an appeal, and both parties seasonably claimed appeals from the final decree. G.L.(Ter.Ed.) c. 214, §§ 19, 26. ¹ ]

At the outset of our consideration of this case we must take up a question of procedure. The defendant asserts in his brief but does not argue that the 'plaintiff did not perfect her appeal[s] taken.' The plaintiff in her brief ignores this point entirely although her brief has an 'Addendum' in the nature of a reply to the defendant's brief. It is significant that in an 'Order in Re Printing' the judge who entered these decrees stated, 'and if pertinent, the following matters, no order for the preparation of papers and copies for the full court having been filed by the plaintiff * * *.' Inasmuch as this question goes to the jurisdiction of this court, although not argued, we cannot overlook it.

No party to litigation has an absolute or common law right to come to this court by way of an appeal or a bill of exceptions. The right to appeal is conferred by statute. G.L.(Ter.Ed.) c. 214, § 19. Section 19 requires that the completion of an appeal shall be governed by § 135 of c. 231. Section 135 reads so far as pertinent: 'In order to carry any question of law * * * from...