319 Mass. 149 | Mass. | 1946
• The petitioner appeals from a decree of the Probate Court dismissing a petition in which she seeks an- execution for the arrears alleged to be due her for her separate support under a former decree of that court. The evidence is not reported, but at the request of the petitioner the judge made a report of the material facts found by him. G. L. (Ter. Ed.) c. 215, § 11. In these circumstances the question for determination is whether the facts found, together with the reasonable inferences therefrom, support his decision. Mooney v. Mooney, 317 Mass. 433, 434. No facts can be implied from the entry of the decree. Carilli Construction Co. v. John Basile & Co. Inc. 317 Mass. 726, 727.
The facts found by the judge are these: At the time the petition for separate support was filed, on August 3, 1943, the parties lived in Malden. On or about August 19, 1943, the petitioner left this Commonwealth for California with the son, then aged fourteen years. The petition was heard on the merits on April 27, 1944, at which time an order was made that the petitioner should have custody of the son and that the respondent should pay toward the support of the petitioner and the son $20 per week for six months, and thereafter $15 per week. The son was then attending school in California, and it was stated to the court and agreed by the parties that upon the return of the petitioner to California the son should remain there for the purpose of finishing his school year, at the end of which he was to be returned
We are of opinion that the record shows no error in the dismissal of the petition by the trial judge. General Laws (Ter. Ed.) c. 209, § 32, governing orders relative to the separate support of a wife and the care, custody and maintenance of minor children, provides that upon the application of the husband or wife the court may, from time to time, “revise and alter such order or make a new order or decree, as the circumstances of the parents or the benefit of the children may require.” Section 33 of the same chapter, as appearing in St. 1933, c. 360, makes §§ 33 and 35 of c. 208 (which relates to divorce proceedings) applicable to separate support petitions “and to all subsidiary proceedings arising thereunder, so far as appropriate.” General Laws (Ter. Ed.) c. 208, § 33, provides that the court “may issue process of at
We cannot agree with the contention of the petitioner that the word “may” as used in §§ 33 and 35 of c. 208 is to be construed as mandatory, with the result that, since there had been no modification of the original order, the judge was obliged to issue the execution applied for. It is well settled in this Commonwealth that, by reason of the peculiar nature of a decree for alimony or for separate maintenance, and the power of the court to revise and alter it at any time, execution is not necessarily to issue for the arrears found to be due, but it is within the discretion of the court, upon consideration of any change in the condition of the parties or of any facts that have occurred after the entry of the original order or decree, to determine in what amount, if any, an execution should issue for unpaid arrears; and no separate petition for modification of the original decree is necessary. Knapp v. Knapp, 134 Mass. 353, 357. McIlroy v. McIlroy, 208 Mass. 458, 465. Williamson v. Williamson, 246 Mass. 270, 272, 273. Watts v. Watts, 314 Mass. 129, 133.
The remaining contention of the petitioner is that, even if issue of the execution was not mandatory, on- the facts found there was an abuse of discretion-by the judge in refusing to issue it. The exercise of discretion by the lower court, although subject to review on appeal, is entitled to weight in this court even when the basis for the action appears fully in the record on appeal. Coe v. Coe, 313 Mass. 232, 235. The basis for the dismissal of the petition appears to have been the fact that the petitioner failed to comply with her agreement with the respondent and her assurance to the court, made when the original decree was entered, that
Decree affirmed.