Ziegler v. McKinlay

• Decision Date: 03 December 1945
• Citation: 318 Mass. 765,64 N.E.2d 15
• Parties: ZIEGLER v. McKINLAY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

318 Mass. 765

64 N.E.2d 15

ZIEGLER

v.McKINLAY.

Supreme Judicial Court of Massachusetts, Essex.

Dec. 3, 1945.

Proceeding on the application of Edward F. Ziegler against Mayola V. McKinlay for modification of an order for payment of alimony. From a decree dismissing the petition, petitioner appeals.

Affirmed.Appeal from Probate Court, Essex County; Phelan, Judge.

Before FIELD, C. J., and LUMMUS, DOLAN, RONAN, and SPALDING, JJ.

A. Brayton, of Boston, for petitioner.

A. Sigel, of Boston, for respondent.

DOLAN, Justice.

This is an appeal from a decree dismissing a petition for modification of an order for payment of alimony contained in a decree of divorce obtained by the respondent, hereinafter described as the libellant, against the petitioner, hereinafter referred to as the libellee.

The evidence is reported, and the judge made a report of the material facts found by him. G.L.(Ter.Ed.) c. 215, § 11. Those facts, as well as those we find ourselves, Lowell Bar Association v. Loeb, 315 Mass. 176, 178, 52 N.E.2d 27, may be summed up as follows: The libellant was granted a decree nisi of divorce from the libellee in the Probate Court for the county of Essex on August 21, 1942. The decree provided that the libellant should have the custody of the minor son of the parties, and that the libellee pay to her the sum of $5,000 on August 21, 1942, and the further sum of $5,000 on February 21, 1945, for the support of said minor child, and ‘in lieu of past, present or future alimony.’ Prior to the entry of that decree, the parties had entered into a written stipulation of like tenor with respect to the order for support and in lieu of alimony, conditioned upon the entry of a decree of divorce in favor of the libellant. Certain other provisions of the stipulation are not here material. The stipulation was brought to the attention of the judge before he entered the decree nisi. Payment of $5,000 was made by the libellee on August 21, 1942, as provided in the decree nisi, which became absolute in due course. The further sum of $5,000 payable on February 21, 1945, was not paid by the libellee, who on October 24, 1944, had filed the present petition for modification of the decree with respect to that payment. The minor child of the parties became of full age on July 29, 1944, having been born on July 29, 1923. On or about February 28, 1943, the libellant married one McKinlay in the State of New York. She separated from him, however, four months later. With the exception of a period of about six months from the separation, she had been receiving $20 weekly from him for her support. She lives with her sister in New York, and the son of the parties is in the armed service. He had made an allotment of $37 monthly to his mother which ceased at her remarrigae. For a brief period she was employed as a nurse and was paid $25 a week. The libellee has been employed by the same business concern for the past fifteen years. At the time of the entry of the decree nisi he was receiving a salary of $5,000 yearly, on which he paid taxes at the then rate. On April 19, 1943, the libellee remarried in the State of New Jersey, and since that date has lived in New Hampshire, travelling by automobile from his home in Nashua to his place of business in Lowell. He now receives a gross annual salary of $7,080. After deduction of...