Whitney v. Whitney

• Decision Date: 10 November 1949
• Citation: 88 N.E.2d 647,325 Mass. 28
• Parties: WHITNEY v. WHITNEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

325 Mass. 28

88 N.E.2d 647

WHITNEY

v.WHITNEY.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Oct. 5, 1949.

Decided Nov. 10, 1949.

Mildred E. Whitney sued Cecil E. Whitney and was granted a divorce and awarded alimony and custody of minor children of the parties.

The Probate Court, Plymouth County, A. W. Davis, J., modified the decree for alimony by increasing the amount defendant was required to pay for support of petitioner and the minor children and defendant appealed.

The Supreme Judicial Court, Ronan, J., affirmed the decree, holding that change of alimony from $175 to $225 monthly was not excessive under the evidence and was justified on ground of changed conditions.

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

N. Learner, Boston, T. A. Flanagan, Boston, for petitioner.

S. C. Rand, Boston, G. V. Mottla, Boston, for respondent.

RONAN, Justice.

This is an appeal from a decree of the Probate Court for Plymouth County which modified a decree for alimony by increasing the amount to be paid by the respondent for the support of the petitioner and three minor children.

The judge made a report of the material facts and we have a transcript of all the evidence, It is our duty to examine the evidence and to decide the case according to our own judgment. Findings made by the judge are not to be reversed unless they are plainly wrong. We are not limited to the findings made by him, and we may make such additional findings as are supported by the evidence. The appeal brings before us all questions of law, fact and discretion. Gordon v. O'Brien, 320 Mass. 739, 740, 71 N.E.2d 221;Rubinstein v. Rubinstein, 319 Mass. 568, 569, 66 N.E.2d 793;Heard v. Heard, 323 Mass. 357, 361, 82 N.E.2d 219.

The evidence discloses the facts now enumerated, many of which have been found by the trial judge and some of which we have ourselves found. The petitioner was granted a divorce from the respondent on July 11, 1944, the decree nisi awarding custody of the three minor children, then aged seven, five and four years, respectively, to the petitioner, and ordering the respondent to pay her $125 monthly for the period from May 1 to October 1 and $140 a month from October 1 to May 1 in each year. A decree entered April 26, 1945, increased this amount of $175 a month. The respondent was ordered by a decree entered on June 25, 1946, to pay medical expenses incurred by the illness of one of the children, and to continue to pay the petitioner monthly the sum of $175. A subsequent decree ordered him to pay certain other medical bills resulting from the illness of another one of the children. By a decree dated August 25, 1947, the petitioner was required to pay to the respondent $25 a month until $2,000 was paid on account of her failure to return a diamond brooch belonging to him. The respondent has deducted this amount from all monthly payments subsequently made by him. The present petition alleged that the monthly payments were insufficient to care for the needs of the petitioner and the children; that they were not properly fed or clothed on said allowance; and that the respondent is possessed of sufficient property and income to provide proper support and maintenance for them. The petitioner's expenses, including payments made on a mortgage on her home where she resides with the children, amount to $333.74 a month. Before the purchase of this house she lived in a house owned by an antique society, paying a monthly rental of $5, but the house was soon to be open to the public. It was an unsuitable place for a home for children. She received $300 in 1947 from a candy business, but it became unprofitable and the business ceased early in 1948. Other than the allowance from her husband she has no source of income. She owes about $2,300. The respondent is an attorney earning $600 a month and a bonus at the end of the year. During 1947 he received $7,700. He married again in April, 1948, and is living in a house owned by his present wife. The house where he formerly lived has been rented at $65 a month. This amount is insufficient to pay the carrying charges on the mortgage. He incurred an expense of $300 in repairing it. The balance of his income after paying $150 a month is expended in paying interest on his indebtedness and mortgage, and living expenses. He has a considerable amount of life insurance payable to his children. He owes a large indebtedness. The petitioner is unable to support herself and the children on an allowance of $150 a month. The respondent is unable to pay any substantial increase if he continues to live according to his accustomed mode, unless he cancels all or a part of his life insurance.

The amount of alimony to be awarded to a wife and children whose custody has been awarded to her rests to a considerable extent in the discretion of the judge, Foster v. Foster, 130 Mass. 189, 190, 191;Coe v. Coe, 313 Mass. 232, 235,4 N.E.2d 1017, after a consideration of all the facts, including the needs of the wife and the children, the financial worth of the husband, the station in life, of the parties, and their mode of living. Topor v. Topor, 287 Mass. 473, 192 N.E. 52;Baird v. Baird, 311 Mass. 329, 41 N.E.2d 5, in order that a just and reasonable allowance may be made for the support of the wife and children. Graves v. Graves, 108 Mass. 314, 321;Commonwealth v. Whiston, 306 Mass. 65, 66, 27 N.E.2d 703. In the great variety of circumstances that are presented in cases involving the question of alimony, no inflexible rule can be formulated defining the weight that should be given to each of the factors which must be regarded in deciding the amount of the award. Commonwealth v. Pouliot, 292 Mass. 229, 231, 232, 198 N.E. 256;O'Reilly v. O'Reilly, 293 Mass. 332, 333, 334, 199 N.E. 741;Commonwealth v. Whiston, 306 Mass. 65, 66, 27 N.E.2d 703;Klar v. Klar, 322 Mass. 59, 60, 76 N.E.2d 5. The custody, support and care of minor children are an important part of divorce proceedings, and decrees concerning the children should be determined by what in all the circumstances will best serve their welfare. They are entitled to adequate support and maintenance in so far as it is reasonably within the power of the father to furnish it. A decree concerning the care, custody and maintenance of the children may be revised and altered from time to time, ‘as the circumstances of the parents and the benefit of the children may require.’ G.L. (Ter.Ed.) c. 208, § 28; Perkins v. Perkins, 225 Mass. 392, 397, 398, 114 N.E. 713;Hersey v. Hersey, 271 Mass. 545, 549, 171 N.E. 815, 70 A.L.R. 518;Heard v. Heard, 323 Mass. 357, 82 N.E.2d 219. It is no bar to a decree for alimony that the husband has again married if the decree is otherwise supported by the facts. Ziegler v. McKinlay, 318 Mass. 765, 767, 64 N.E.2d 15. Compare Brown v. Brown, 222 Mass. 415, 417, 111 N.E. 42.

A Probate Court may by G.L. (Ter.Ed.) c. 208, § 37, ‘from time to time, upon the petition of either party, revise and alter its decree relative to the amount of such alimony or annual allowance and the payment thereof, * * *.’ A decree is binding and conclusive upon the parties...