Doole v. Doole

| Mass. | Mar 23, 1887

Morton, C. J.

In proceedings under the Pub. Sts. c. 147, § 33, it is not competent for the Probate Court to enter a decree, without the consent of parties, that the husband shall pay a sum in gross for all support of his wife in the future.

The provision of the statute, that the court may make such “ order as it deems expedient concerning the support of the wife,” must be construed with reference to the nature and purposes of the proceeding, and does not authorize a decree for a sum in gross, which looks to, and is based upon, the permanent future separation of the husband and wife. Such a decree may be proper where there has been a divorce, which establishes the permanent future status of the parties. But proceedings under this statute are designed to secure the temporary support of a wife who is separated from her husband for just cause, while the marriage relation exists and the cause for separation continues. A decree under the statute does not create a judicial separation, nor establish a permanent status for the future. Barney v. Tourtellotte, 138 Mass.. 106.

This construction is supported- by the Pub. Sts. c. 156, § 13, upon which the petitioner .mainly relies. This provides that the decree or order of the Probate Court in such proceedings shall not be annulled or stayed by an appeal, but shall have effect notwithstanding an appeal, until otherwise ordered by the Supreme Judicial Court. This provision is reasonable, when applied to an order for monthly, weekly, or other periodical payment to the wife, the object of it being to provide for her present necessities, and to guard against her being left without any means of support while an appeal is pending. But it cannot reasonably be applied to an order for the payment of a sum in gross, such as was made in this case. The object of an appeal would be either to increase or to diminish this sum. If a husband might be compelled to execute the order of the Probate Court at once, an appeal would be of no benefit to him. We do not think the Legislature intended that the Probate Court should have the power to order a sum in gross to be paid by the husband in lieu of the future support of his wife during her life.

We do not decide that there may not be cases in which it would be competent for the Probate Court to order a fixed sum to be paid by the husband presently, instead of ordering periodical payments. Cases may arise where this would be the only practicable mode of securing support for the wife in the immediate future. But the court cannot order a sum to be paid as a substitute for all future support of the wife, thus practically creating a judicial separation.

In the case at bar, the judge of probate, after a hearing, determined that the husband should pay to the wife $6 a week for her support; instead of entering this decree, he, by consent of both parties, entered a decree that the husband pay the petitioner the sum of $1500 forthwith, “ such sum being decreed to be the whole sum to which the said petitioner shall be entitled by way of separate support.” Immediately after the decree, the husband paid the petitioner the sum of $1500. She gave a receipt for it, and has never offered to return the money.

As she assented to the decree, she was not aggrieved by it. Her assent and the reception of the money in execution of the decree are inconsistent with her right of appeal, and operated as a waiver of such right. We cannot consider what may be the effect of these proceedings upon the future rights of the parties; but by her acts she elected to treat the decree as binding and final; and she cannot prosecute an appeal from it upon the ground stated in her reasons of appeal that the sum awarded is “ insufficient for her apparent needs during the probable length of her life.” Appeal dismissed.