Wilson v. Caswell

• Decision Date: 08 July 1930
• Parties: WILSON v. CASWELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

272 Mass. 297

172 N.E. 251

WILSON

v.CASWELL.

Supreme Judicial Court of Massachusetts, Suffolk.

July 8, 1930.

Appeal from Probate Court, Suffolk County; Wm. M. Prest, Judge.

Proceedings by Hayward Wilson against Dorothea K. Caswell for modification of a divorce decree in the matter of alimony pursuant to agreement. From a decree denying and dismissing the petition, petitioner appeals.

Reversed.

M. Collingwood, of Boston, for appellant.

F. W. Knowlton and B. Potter, both of Boston, for appellee.

WAIT, J.

The facts disclosed by the record before us and material to the determination of this cause are as follows: By a decree of the probate court of Suffolk county dated May 14, 1924, Hayward Wilson was ordered to make certain payments for the support of his wife, Dorothea K. Wilson, then living apart from him, and of their minor children. Later, the wife filed a libel seeking divorce from him; and, still later, under date of January 30, 1925, with one Collingwood as trustee for the husband and one Hall as trustee for the wife, an agreement under seal was executed by the four ‘to determine what amount should be decreed by the Court to be paid by the said Hayward Wilson to the said Dorothea K. Wilson as alimony upon a decree of divorce, if one shall be granted, and to secure the payment of such amount, and to make permanent disposition of certain property of the parties.’ This agreement assigned to the wife, as of March 1, 1925, the husband's interest in a trust fund created for his benefit by the will of his mother, for her life and, on her death, one-half to their son Franklin until he became twenty-one years of age and one-half to their son Roger until he became twenty-six years of age, and Wilson agreed if the income fell below $5,000 in any year to pay to her a sum sufficient to make the income $5,000 and Mrs. Wilson agreed if she should receive as income from the fund in any year more than $5,000 to pay the excess to him in the January following such calendar year. He released all interest in certain real property standing in her name, and agreed to the cancellation of a certain contract of February 19, 1923, and to make no claim in a trust therein referred to. Mrs. Wilson cancelled all claim to payments due or to become due under the decree for separate support of herself and minor children, and agreed to make payment of $1,500 to him or his attorneys on March 1, 1925. Other provisions for the benefit of the one or the other were also agreed upon. This agreement was entered into freely by all parties, was free from fraud, and was fair and reasonable. On February 27, 1925, a decree nisi for divorce was entered by the court, and an order was embodied in it that the libellant should have custody of the minor children and that libellant and libellee should make certain assignments, releases, payments and agreements (in substance the things agreed to be done in the agreement which has been described), and that no further payments should be required of the libellee under the decree of May 14, 1924. On March 2, 1925, the assignment of interest in the trust established by his mother's will was executed by Wilson. On September 10, 1929, Wilson petitioned the court for modification of the decree alleging that Dorothea Knight Wilson had on August 31, 1929, become the wife of one Caswell who was able to support her aside from her personal income, that she has a substantial income from her own resources aside from the alimony received under the decree and assignment, that the son Francis had reached twenty-one years of age and the son Roger is nineteen years of age, that his own income for the past five years has not exceeded $7,500 per year and he is unable adequately to support himself and family out of his current income. He prayed that the terms of the decree be modified or revoked, that the security given said Dorothea to secure payment of the alimony be reassigned to him, and for further relief. The respondent was allowed to file an answer setting up as a defence to the petition the facts which have been recited with regard to the agreement and the former decree. The decree sets out: ‘It appearing that the agreement set forth in the answer, which was pleaded in bar to this petition, was openly arrived at and fairly made in all respects and met the approval of the Court-It is decreed that said petition be and hereby is denied and dismissed.’ The petitioner appeals.

The record indicates that nothing other than the effect of the agreement as a legal bar to a petition for modification of the decree of February 27, 1925, was considered by the court. The denial of the prayer of the petition is not to be taken as a determination made after considering the changes in the situations of the parties which are alleged to have taken place since the earlier decree was entered, and thereupon deciding that, in the judicial discretion of the judge of probate, no modification ought now to be decreed; but is to be taken as a decision that, because of the executed agreement, the judge was in law without power to modify the earlier decree. The prayers of the petition are too broad and the words of the decree too plain to enable us to say that the decree merely refuses to require a reassignment of the interest in the trust fund.

Bailey v. Dillon, 186 Mass. 244, 71 N. E. 538,66 L. R. A. 427, was a case where a husband, whose wife had left him and was threatening proceedins for a separate maintenance, entered into an agreement with her through a trustee, providing for her support, which contained a promise by her not to claim further support. She brought a petition for separate support in the probate court. Thereupon the trustee filed a bill in equity to restrain its...