278 Mass. 309 | Mass. | 1932
This is a libel for divorce, filed on November 15, 1928, in the Probate Court for the county of Middle-sex, alleging adultery and cruel and abusive treatment. The case comes before us on appeals by the libellant from certain decrees.
On December 14, 1928, the libellee was ordered to pay the libellant toward her support and that of their minor child $60 a week. On the same day the libellee filed an answer consisting of a denial of the allegation of adultery, and on December 28, by leave of court, filed a motion to amend his original answer by substituting therefor a general denial of all the allegations of the libel, and a plea of condonation of the charge of adultery. This motion was allowed on January 14, 1929. Thereafter the case was heard on the merits, and on September 16, 1929, the libellant was granted a decree nisi for the cause of cruel and abusive treatment, which was to become absolute after the expiration of six months from the entry of the decree unless the court should otherwise order. On September 12, 1929, the libellee had filed a motion to amend his answer by alleging that if the libellant should prove the allegations of cruel and abusive treatment the same was condoned by her. This motion was denied on September 19, 1929. In a decision filed by the judge he states that at the original hearing he found that adultery was not proved, but that the charges of cruelty were sustained; that at that hearing he was requested to find that the libellant had condoned the alleged acts of cruelty; that he refused so to find on
It does not appear that any action in the case was taken thereafter until April 23, 1930, on which date the libellee filed a petition to set aside the decree nisi on the ground that failure to plead condonation to the allegation of cruel and abusive treatment was due to the inadvertence, mistake or negligence of his counsel, since deceased, who believed that the pleading filed was sufficient for all alleged causes for divorce set forth in the libel. The petition also prayed that the libellee be allowed to amend his answer by pleading condonation to the charge of cruel and abusive treatment. On June 24, 1930, the libellant filed a motion to dismiss the libellee’s motion to set aside the decree nisi. On June 26, 1930, this motion was denied. The libellee waived his appeal from the entry of the decree nisi, and the next day, June 27, the judge ordered the decree nisi to be vacated; the libellee was given leave to file an answer alleging condonation of the charge of cruel and abusive treatment and the case was ordered to stand for further hearing solely on that issue. From the above decrees the libellant appealed on July 15. The order denying the libellee’s motion to amend his answer by pleading condo-nation to the charge of cruel and abusive treatment entered September 19, 1929, was revoked, and the motion was allowed on June 27, 1930. On April 1, 1931, the libellee filed a further answer alleging condonation of the charge of cruel and abusive treatment, which was denied by the libellant. Thereafter the case was heard upon the merits, and on April 10, 1931, the judge filed a decision and therein ordered the libel dismissed on the ground that the libellant had condoned certain of the acts of cruel and abusive treatment by living with the libellee after the acts com
It is settled that a court of probate has power to correct or vacate its decree for adequate and legal cause. It was said in the recent case of Goss v. Donnell, 263 Mass. 521, at pages 523-524: “It now is settled that a court of probate has power to correct errors in its decrees arising out of fraud, or mistake, or want of jurisdiction, or for any reason adequate in law. Its power in this field is ‘ analogous to that of courts of common law to issue writs of review and of courts of equity to entertain bills of review. It is to correct mistakes of fact or of law.’” Crocker v. Crocker, 198 Mass. 401, 404-405. The mistake in the case at bar could have been found to have been in believing that the plea of condonation filed originally by the attorney of the libellee was broad enough to be applicable to all causes for divorce alleged in the libel. Condonation is an affirmative defence. It could not be heard unless set up by the answer. Divorce Rule 8 of the Probate Court. Sanderson v. Sanderson, 271 Mass. 386. It is plain that the Probate Court on June 27, 1930, had jurisdiction to vacate the decree nisi entered on September 16, 1929, as the libellee on June 26, 1930, had waived his appeal to this court. The entry of the decree nisi was in its nature interlocutory; the libel was still pending and could be corrected or revoked for mistake or for any reason adequate in law. It follows that upon the facts disclosed by the record it did not become absolute at the expiration of six months from the date it was entered. Goss v. Donnell, 263 Mass. 521. Sullivan v. Sullivan, 266 Mass. 228, 229. Hilton v. Hopkins, 275 Mass. 59, 63. Upon the facts found by the judge a
Divorce Rule 4 of the Probate Court provides in part that “At any time before the expiration of six months from the granting of a decree of divorce nisi, the libellee, or any other party interested, may file in the office of the register a statement of objections to an absolute decree, which shall set forth specifically the facts on which it is founded, and be verified by affidavit.” It is the contention of the libellant that as the libellee failed to file any objections under the rule the decree nisi became absolute under G. L. c. 208, § 21. It is sufficient to say that the rule is not applicable to the facts in the case at bar. Independently of the rule, a decree for divorce may be revoked or denied if against public policy or for any reason adequate in law. Goss v. Donnell, 263 Mass. 521. Sanderson v. Sanderson, 271 Mass. 386, 389.
After entry of the decree dismissing the libel, the libellant on July 13, 1931, filed in the Probate Court a petition for contempt against the libellee for failure to pay alimony as ordered on December 14,1928. This order was entered soon after the libel was filed. The judge ruled as matter of law that the decree dismissing the libel vacated the temporary order of December 14, 1928, notwithstanding the appeal from that decree, and he dismissed the petition; the libellant appealed. At her request he reported the material facts found by him upon which he dismissed the petition for contempt. He found that it was conceded by the libellant that the libellee had complied with the order until April 10, 1931, when her libel was dismissed, and that it was conceded by the libellee that he had not made any payments since the libel was dismissed. G. L. c. 208, § 17, provides that “The court may require the husband to pay into court for the use of the wife during the pendency of the libel an amount to enable her to maintain or defend the libel, and to pay to the wife
We have considered all the appeals which have been argued. They need not be considered in detail. It is sufficient to say that we find no reversible error in the rulings of
Ordered accordingly.