Watts v. Watts
| Decision Date | 01 December 1942 |
| Parties | MABEL ESTELLE WATTS (now BOGERT) v. HORACE WELLINGTON WATTS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
May 6, 1942.
Present: FIELD, C.
J., DONAHUE, QUA DOLAN, & COX, JJ.
Marriage and Divorce, Appeal, Report, Proceeding in Superior Court. Practice, Civil, Appeal, Report, Order for judgment. A petition in the Superior Court under Section 37 of G. L (Ter. Ed.) c.
208 for modification of a decree for alimony in a divorce case was a proceeding at law and no appeal lay therein except under Section 96 of c. 231.
A purported final decree, entered before the expiration of the time for exceptions on a petition for modification of a decree for alimony in a divorce case in the Superior Court, could have no greater effect than an order for judgment.
Findings and rulings made by a judge of the Superior Court after hearing a petition for modification of a decree for alimony in a divorce case were not part of the record before this court on an attempted appeal from the judge's order for decree on the petition, treated as an order for judgment.
An order for a decree upon a petition for modification of a decree for alimony in a divorce case in the Superior Court was not an "order decisive of the case founded upon matter of law apparent on the record" within G. L. (Ter. Ed.) c. 231 Section 96, and was not appealable.
Although an appeal did not lie under G. L. (Ter. Ed.) c. 231, Section 96, from an order for decree on a petition for modification of a decree for alimony in a divorce case in the Superior Court it would still be within the authority of the trial judge to report the case to this court.
LIBEL FOR DIVORCE, filed in the Superior Court on October 1, 1917. A decree nisi and a decree for alimony were entered on January 29, 1918. A petition by the libellee for modification of the decree for alimony was filed on July 26, 1941, and was heard by Dowd, J., who filed what purported to be a final decree, from which the libellee appealed.
A motion by the libellant to dismiss appeals by the libellee was denied by Hammond, J., and the libellant alleged exceptions.
R. B. Heavens, for the libellee.
J. W. Worthen, (A.
G. Avery of New York with him,) for the libellant.
This is a petition brought in the Superior Court, under the provisions of G. L. (Ter. Ed.) c. 208, Section 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, Section 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 on "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 libellee 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, Section 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, Section 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, Section 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, Section 38, and has been in force ever since. It is recognized that under Section 33 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, 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, Section 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, 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, Sections 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 was the present petition under c. 208 Section 37, or a predecessor statute identical in terms, have been entertained and...
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