Watts v. Watts
| Decision Date | 01 December 1942 |
| Parties | WATTS v. WATTS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Petition by Horace W. Watts against Mabel Estelle Watts now Bogert for modification or vacation of a decree for alimony entered in connection with a divorce decree entered upon the libel of respondent against the petitioner. The trial judge filed an amended statement of findings, rulings and order for decree and a final decree and petitioner appealed and respondent's motion to dismiss the appeals was denied and respondent brings exception.
Exception sustained. Order reversed with direction.Appeal from Superior Court, Suffolk County; T. H. Dowd, Judge.
Before FIELD, C. J., and DONAHUE, QUA, DOLAN, and COX, JJ.
R. B. Heavens, of Boston, for libellee.
J. W. Worthen, of Boston, and A. G. Avery, of New York City, for libellant.
This is a petition brought in the Superior Court, under the provisions of G.L. (Ter.Ed.) c. 208, § 37, for modification or vacation of a decree for alimony dated January 29, 1918, entered in connection with a decree nisi of divorce, dated the same day, which became absolute in due course. G.L. (Ter.Ed.) c. 208, § 21. The decree nisi was granted upon the libel of the respondent against the petitioner. The prayer of the present petition is that ‘a decree be entered modifying or vacating the decree * * * for the payment of alimony and that the modifying decree be entered nunc pro tunc as of date of the entry * * *’ of the decree for alimony.
After hearing the judge filed a document on February 3, 1942, entitled, ‘Amended Statement of Findings, Rulings and Order for Decree.’ This document, while phrased in part in the terms of a final decree, we think was intended to be an order for decree and should be treated as such, since the record discloses that, on the same day, what purports to be a final decree was entered by order of the judge, and is docketed following the entry of the document first referred to. The contents of the statement of findings, rulings and order for decree may be summarized as follows: The decree for alimony entered on January 29, 1918, ordered the libellee, the petitioner here, to pay to the libellant, the respondent here, $162.50 monthly in equal instalments of $40.62, the first payment to be made on Friday, February 1, 1918. The decree nisi became absolute of ‘July 29, 1918,’ and in September of 1918 the respondent married one Bogert, a resident of the State of New York, and lived with him in that State until his death on July 10, 1939. He was a man of substantial means and earning capacity, averaging from 1920 to the time of his death $11,250 a year. He left an estate of at least $75,000. He ‘left to the * * * [respondent] the proceeds of an insurance policy in the amount of $10,500 and a bequest under his will in trust a fund of $25,000.’ The respondent has other property. The respondent was properly and sufficiently supported by Bogert, ‘she did not need nor require support from the’ petitioner, and at no time did she endeavor or attempt to enforce the decree for alimony until June 5, 1941, when demand was made ‘for payment of the arrears under said decree.’ At no time has the petitioner made any of the payments required by said decree. Since the entry of the decree the petitioner has remarried, has a wife and two children dependent upon him for support, and has contributed to the support of his mother. His ‘income for the past year amounts to $10,000.’ Under the provisions of Bogert's will, in addition to the income payable from the trust fund of $25,000, the trustees are empowered in their discretion to pay to the respondent from the principal such sums as she may need. The trustees have refused to make payments to her from principal, because of representations made to them and to the courts of New York that a large sum of alimony in arrears was due the respondent under the decree in question. The judge ruled that ‘this court has no power to revoke or modify the decree * * * as to arrears of alimony already due and payable to the libellant,’ reciting that he made ‘this ruling without prejudice to the rights of either party hereto, on scire facias petition or other legal process brought to enforce said decree,’ and ‘As to future alimony it is ORDERED, ADJUDGED and DECREED that the decree of January 29, 1918, be and hereby is modified to the extent that the libelee shall not be required to make any further payments of future alimony after the entry of this decree * * *.’
The subsequent decree is in the following form.
The petitioner appealed from the amended statement of findings, rulings and order for decree and from the final decree on February 7, 1942. On March 4, 1942, the respondent filed a motion to dismiss ‘these appeals' on the grounds that neither the statement of findings, rulings and order for decree nor the decree itself constituted an order “decisive of the case founded upon matter of law apparent on the record,’ within the meaning of' G.L. (Ter.Ed.) c. 231, § 96, and that no exceptions were saved by the petitioner. The judge denied that motion on March 25, 1942, and the respondent duly excepted to his action in that respect.
In support of her exception to the denial of her motion just referred to, the respondent has argued that the order for decree was not one appealable under c. 231, § 96, and that since divorce proceedings are not suits in equity, but are on the law side of the court, the only remedy that was open to the petitioner was by exceptions which he did not save. The petitioner, however, relying on certain decisions of this court to which we will later refer, and upon the provisions of G.L.(Ter.Ed.) c. 208, § 33, that in proceedings coming within the purview of c. 208 (the divorce statute), the ‘court may, if the course of proceeding is not specially prescribed, hear and determine all matters coming within the purview of this chapter according to the course of proceedings in ecclesiastical courts or in courts of equity,’ has argued that appeal lies in the present case.
Section 33 was first enacted in almost identical language by Rev.Sts. c. 76, § 38, and has been in force ever since. It is recognized that under § 33 of the course of proceedings in the hearing and determination of all matters coming within the purview of the divorce statute is assimilated to that in ecclesiastical courts and courts of equity, MacLennan v. MacLennan, 311 Mass. 709, 712, 42 N.E.2d 838, and cases cited, but whenever the subject has been discussed it has been pointed out that divorce proceedings are not suits in equity, but are on the law side of the court, and it has never been held, so far as we are able to discover, that the provisions of G.L. (Ter.Ed.) c. 214, § 19, relative to appeals from final decrees in equity, apply in divorce proceedings in the Superior Court. On the contrary, we think that it must be held that such cases as Sparhawk v. Sparhawk, 120 Mass. 390, 392, and Greenia v. Greenia, 206 Mass. 449, 450,92 N.E. 925, are decisive authority to the effect that divorce proceedings are at law, and that the provisions for appeal in suits in equity have no application to matters arising under the divorce statute in the Superior Court, contrary to the practice governing such matters arising under that statute in the Probate Courts as well as all other matters within the jurisdiction of those courts by virtue of G.L.(Ter.Ed.) c. 215, §§ 9-29.
It is true, as argued by the petitioner, that in a number of instances appeals from decrees entered upon petitions brought in the Superior Court as the present petition under c. 208, § 37, or a predecessor statute identical in terms, have been entertained and decided in this court. In none of those cases, however, was the question now under consideration discussed, and in most of them the decrees appealed from were founded upon matter of law decisive of the case, apparent on the record. Knapp v. Knapp, 134 Mass. 353, was an appeal from the denial of a writ of scire facias, and the appeal was rested on the contention that on the facts set forth in the writ it could not be maintained. In that case obviously the decree was founded upon matter of law apparent on the record. Hill v. Hill, 196 Mass. 509, 82 N.E. 690, was an appeal from a decree sustaining a demurrer and hence within the provisions of c. 231, § 96. Farrington v. Boston Safe Deposit & Trust Co., 280 Mass. 121, 181 N.E. 779, was an appeal from a decree entered after hearing upon a case stated, and likewise was within the terms of § 96. Perkins v. Perkins, 225 Mass. 392, 114 N.E. 713, was an appeal from a decree in which the judge made a nunc pro tunc order. The question of the authority to do so was apparent on the record but this court did discuss the facts found. The question whether appeal was the appropriate remedy of the appellant does not appear to have been raised in that case. Smith v. Smith, 190 Mass. 573, 77 N.E. 522,5 Ann.Cas. 939, is somewhat like the present case. In the Smith case the question of law argued was whether the court had jurisdiction to grant additional alimony, and it was decided that the order allowing further alimony ‘must be construed to be a finding that there was a change in the circumstances of the libelee’ (page 576 of 190 Mass.,page 523 of 77 N.E.,5 Ann.Cas. 939) which would justify the...
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