Grace L. Baird of Belmont, herein referred to as the libellant, brought in the Probate Court for the
The libellant on February 13, 1941, filed in the Probate Court for the county of Middlesex a so called petition for modification of said decree of divorсe entered June 19, 1935, against Arthur E. Baird, “formerly of parts unknown now commorant in Boston,” wherein the libellant prayed that said decree “be modified and that the said Arthur E. Baird [herein referred to as the libelleeJ be ordered to pay your petitioner alimony.” A citation issued upon the petition returnable March 10, 1941, by which it was ordered that notice of this proceeding be givеn by delivering a copy of such citation to the said Arthur E. Baird. Service of such citation was made by delivery of a copy thereof in hand to the libellee. On July 7, 1941, an order was entered, рending the final allowance of the petition or the further order of the court, that the libellee “pay to his former wife . . . Grace L. Baird toward her support the sum of one hundred dollаrs on each and every Saturday hereafter, beginning with the twelfth day of July 1941.” The libellee appealed from this order. On October 2, 1941, the libellee moved that the libellant’s “petition for modifiсation” of the decree of June 19, 1935, be dismissed. On the same day the motion was denied after hearing. The libellee appealed. On October 29, 1941, a decree was entered, after hearing, that “said decree dated June 19, 1935, be so modified that said libellee pay to said libellant forthwith the sum of twenty-five thousand dollars in gross, in lieu of all alimony, past, present and future, and еxcept as herein modified said decree be affirmed.” The libellee appealed.
The libellee contends that the Probate Court was without
1. In substance the petition is a petition for alimоny. The right of a divorced wife to alimony is governed by statute, subject to jurisdictional requirements. Gediman v. Cameron,
The stating part of the petition indicates that the petition was brought under G. L. (Ter. Ed.) c. 208, § 34. It is alleged therein that under the “decree [of divorce] dated June 19, 1935, no provision was madе for alimony,” thus excluding the petition from the scope of § 37, which applies only “after a decree for alimony” and provides for revision or alteration of a decree “relative'to the amount of such alimony.” And the prayer of the petition “that the said decree of June 19, 1935, be modified and that the said Arthur E. Baird be ordered to pay your petitioner аlimony” is broad enough to include relief by a separate decree for alimony, though asking also for modification of the decree of divorce of June 19, 1935. Though the petition is described as a “petition for modification,” it is to be treated in accordance with its essential substance. E. S. Parks Shellac Co. v. Jones,
2. The facts disclosed by the record bring this petition within the scope of G. L. (Ter. Ed.) c. 208, § 34, as a “petition [for alimony] at any time after a divorce.” Upon the original libel for divоrce personal service was not made upon the libellee, who was then “of parts unknown,” and the court, therefore, was without jurisdiction in that suit to award alimony to the libellant. Parker v. Parker, 211 Mass. 139, 141. Schmidt v. Schmidt,
3. No error is disclosed by the record in entering the decree for alimony pendente lite. This decreе could not have been entered under G. L. (Ter. Ed.) c. 208, § 17, providing that the “court may require the husband ... to pay to the wife alimony during the pendency of the libel.” “This section by its express terms assumes that the relationship of husband and wife has not been legally terminated.” Wallace v. Wallace,
4. By the final decree alimony was awarded to the libellant in a lump sum "in lieu of all alimony, past, present and future." It was within the power of the court, in its sound discretion, to order alimony paid "in one gross sum, instead of being made payable at stated periods." Burrows v. Purple,
The decree, however, was irregular in form. The petition, as already stated, is to be treated as a petitiоn for an original award of alimony under G. L. (Ter. Ed.) c. 208, § 34, and not as a petition for an alteration or revision of a decree for alimony "relative to the amount of such alimony" under G. L. (Ter. Ed.) c. 208, § 37, since there was no such decree. A separate decree for alimony, therefore, should have been entered, rather than a decree purporting to modify thе decree of divorce. And though we assume that “upon petition or motion under probate practice even a decree which purports to be final and conclusivе may be revoked for any cause which would enable a court of common law or equity to set aside a final judgment or decree by any known process of review,” Greene v. Springfield Safe Deposit & Trust Co.
5. The decree denying the motion to dismiss the petition is affirmed. The decree awarding аlimony pendente lite is affirmed. The final decree in its ordering part must be modified by striking therefrom the words “that said decree dated June 19, 1935, be so modified” and the words “and except as herein modified said decree be affirmed,” and as so modified such final decree is affirmed.
Ordered accordingly.