Whitney v. Whitney
| Decision Date | 06 June 1944 |
| Citation | 55 N.E.2d 601,316 Mass. 367 |
| Parties | WHITNEY v. WHITNEY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Bill in equity by Lucy B. Whitney against Robert U. Whitney to enforce a separation agreement entered into by plaintiff and defendant in the State of New York. From a decree, the plaintiff appeals.
Affirmed.Appeal from Superior Court, Bristol County; Leary, Judge.
Before FIELD, C. J., and LUMMUS, QUA, DOLAN, RONAN, WILKINS, and SPALDING, JJ.
H. W. Connolly, of New Bedford, for plaintiff.
G. P. Ponte, of New Bedford, for defendant.
This is a bill in equity by which the plaintiff seeks to enforce a separation agreement entered into by her and the defendant in the State of New York. The prayers of the bill are for the determination of the amount due to the plaintiff under the agreement as amended, after an accounting in accordance with the provisions of G.L. (Ter.Ed.) c. 214, § 3(6), and for other relief.
In his answer the defendant admitted certain allegations of the bill, denied others, among them one ‘That the plaintiff is without a plain, complete and adequate remedy at law,’ and prayed that [
The case was referred to a master whose material findings may be summed up as follows: The parties, both of whom resided in Massachusetts when this proceeding was begun, were married on August 18, 1917. Four children were born of the marriage, the date of birth of the last child being April 4, 1927. On March 15, 1935, the parties entered into an agreement for the support of the plaintiff and the children in which the plaintiff was recited as of ‘Short Hills,’ in the ‘State of New Jersey,’ and the defendant as of the ‘City and State of New York.’ The agreement was executed in the county and State of New York. On May 17, 1935, the defendant obtained a decree of divorce absolute from the plaintiff in the Second Judicial District Court of the State of Nevada. The decree contained the following recital: ‘That on the 15th day of March, 1935, the parties hereto entered into a separation agreement providing for the support of the defendant and the care, custody, control, support, maintenance and education of the minor children of the parties, and which said agreement the court hereby approves.’ The agreement, however, contains the following provision: ‘Fourteenth: Should either of the parties hereto hereafter obtain a decree of divorce one from the other, both parties hereto hereby consent and agree that this Agreement and all it contains shall not be in any wise affected or impaired by any such divorce and that nothing in such decree shall alter, amend or vary any of the terms of this agreement.’ On May 22, 1940, the parties executed an agreement modifying the amount of payments required to be made under its terms. The details of the agreement with respect to support need not be recited since no question is raised as to the accuracy of the amount found by the master to be due from the defendant to the plaintiff for the years 1939, 1940 and 1941, after detailed accounting of his earnings and other income in those and prior years. The suit was begun on December 22, 1941.1 On July 30, 1943, an interlocutory decree was entered confirming the master's report, and on the same day the judge entered a final decree adjudging that the defendant owed the plaintiff on January 1, 1942, the sum found due by the master, together with interest therefrom to the date of the decree in the sum of $440.08, making a total of $5,080.82, ordering the defendant to pay that sum to the plaintiff with costs in the sum of $27.75, and denying the defendant's prayer for modification of the agreement. The plaintiff's appeal from the decree brings the case before us.
The plaintiff contends that the final decree entered by the judge should have included an order for future payments to her, an order that the defendant furnish to her or her attorney ‘a sworn statement of his income for the calendar year 1942 forthwith, and likewise on April 1 of each succeeding year, beginning April, 1944, for the calendar year next preceding until further order of the court,’ and that he furnish to her or her attorney duplicate insurance premium receipts for certain policies of life insurance ‘and his policy of insurance issued by the Veterans' Administration of the United States Government within thirty- one . . . days from the due date of the premiums for said policies.’
There was no error in the failure of the judge to include in the final decree any orders with respect to future payments, or as to an accounting from time to time in the future by the defendant of his income and of his payments on account of insurance policies. No case is made for purely equitable relief. Had the plaintiff resorted to an action at law and she could have done so (Schillander v. Schillander, 307 Mass. 96, 98, 29 N.E.2d 686), she could not have recovered more than was due under the contract when the action was brought. ‘Actual injury and not anticipated injury is the ground of legal recovery.’ Daniels v. Newton, 114 Mass. 530, 539, 19 Am.Rep. 384. ‘When a right does not exist or grow out of a right existing when a suit is begun, relief cannot be granted on facts happening after the date of the suit * * * in equity, when in like circumstances an action could not be maintained at law.’ Cobb v. Library Bureau, 260 Mass. 7, 14, 157 N.E. 46, 48. It follows that the plaintiff was not entitled to an order for future payments and accountings.
The defendant has argued that the judge erred...
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