312 Mass. 452 | Mass. | 1942
The parties are husband and wife. The husband brought a petition against the wife, presumably under G. L. (Ter. Ed.) c. 209, § 32, on the ground that he was living apart from her for justifiable cause. This petition resulted in a decree, dated October 11, 1940, whereby the custody of the three minor children of the parties was granted to the husband and the wife was ordered to pay him the sum of $700. Thereafter, under said § 32, the case remained pending in the Probate Court for an application by either party for a review of the decree or a new order or decree, “as the circumstances of the parents or the benefit of the children . . . [might] require.” Smith v. Smith, 184 Mass. 394, 397. McIlroy v. McIlroy, 208 Mass. 458, 464. Williamson v. Williamson, 246 Mass. 270. Slavinsky v. Slavinsky, 287 Mass. 28, 32. Rosa v. Rosa, 296 Mass. 271, 272.
The somewhat unusual petition now before us was filed November 29, 1940. It is by the wife against the husband. It appears to have been filed in the original case and to have been entitled as a petition for “modification” of the original decree. Its nature can perhaps best be indicated by a summary of its prayers. Prayer (1) is that the original decree be modified by striking therefrom the order for the payment by the wife to the husband of $700 and interest. Prayer (2) is that the husband be ordered to convey to the wife his “nominal interest” in the equity of a house in Springfield and to pay her the rental value of the property while he occupies it. Prayer (3) is that the original decree be modified so that the custody of the children shall be awarded to the wife, with a weekly allowance for their support. Prayer (4) is that the husband be ordered to deliver to the wife a set of dishes and a bedspread. This prayer was waived at the hearing in the Probate Court. Prayer (5) is for such other equitable relief as the court might deem proper. The Probate Court dismissed the petition without prejudice, and the wife appealed. The evidence is not reported.
Prayer (2) rests upon allegations which are designed to show that the house in question was bought with the wife’s money, and that a trust resulted to her. We assume, without deciding, that a resulting trust is sufficiently alleged. An attempt to enforce a cause of action in equity for a resulting trust has no place in a petition to modify a separation decree under G. L. (Ter. Ed.) c. 209, § 32. except as § 33 of that chapter as appearing in St. 1933, c. 360, imports into separate support proceedings the provisions of G. L. (Ter. Ed.) c. 208, § 33, as amended by St. 1936, c. 221 (relative to divorces), that “In such proceedings the court shall have jurisdiction in equity of all causes cognizable under the general principles of equity jurisprudence, arising between husband and wife, such jurisdiction to be exercised in accordance with the usual course of practice in equity proceedings.” We had occasion to consider this statute in the recent case of MacLennan v. MacLennan, 311 Mass. 709, 711, and we there outlined a method by which the jurisdiction conferred upon the court by the statute could “be exercised in accordance with the usual course of practice in equity proceedings.” The present petitioner did not follow this or any equivalent method. She has made no attempt to separate her alleged cause of action in equity from her endeavor to modify the original separation decree. The allegations pertinent to both are indiscriminately commingled in one petition. The method adopted makes it difficult, if not impossible, to deal with the alleged cause of action in equity “in accordance with the usual course of practice in equity proceedings,” as required, by the statute.
Prayer (3) concerns the custody and support of the children. That question could be reopened by the wife at any time on a petition to modify the original decree granting custody to the husband. G. L. (Ter. Ed.) c. 209, § 32. The allegations supporting this prayer are pertinent in that they bear upon the conduct of the husband since the original hearing and down to the time of filing the petition for modification and upon his fitness to retain custody of the children. At the hearing on the present petition the wife offered evidence to prove these allegations, but the judge “ruled as inadmissible any evidence concerning the acts of the respondent, the care of the children and the home situation in general, covering any period” between the date of the original decree and March 1, thereafter, “leaving the six months’ conditions prior to this hearing to be considered.” (The hearing on the petition for modification was held on September 8, 1941.) We have been unable to discover any sufficient ground for a general ruling limiting all evidence to the period of six months before the hearing. It would seem that conduct of the husband before that time, especially when taken in connection with evidence that was admitted of his subsequent conduct with reference to intoxication, might be such as to bear upon the present propriety of his retaining custody of the children. The persistence of drinking habits over a considerable period might well be a material matter. The period as to which evidence was
Prayer (5) for other equitable relief presents no additional question.
The several subject matters of the present petition appear to be separable. The decree should therefore be so modified that the dismissal without prejudice shall apply only to so much of the petition as relates to the payment of $700 by the respondent to the petitioner and to so much of the petition as relates to the real estate on Nottingham Street in Springfield. The petition is to stand for further hearing in so far as it relates to modification of the original decree for custody of the children and to an allowance for their support. As so modified the decree is affirmed.
Ordered accordingly.