Gifford v. Gifford

244 Mass. 302 | Mass. | 1923

Crosby, J.

A decree on a petition brought under R. L. c. 153, § 33, was entered in the Probate Court on November 11, 1915,. ordering Nathan A. Gifford to pay to Bernice T. Gifford $20 forthwith and the sum of $6 per week thereafter until the further order-of the court. On June 30, 1921, Nathan filed in the Probate Court, his petition, praying that the decree above referred to be annulled,, or modified on various grounds as to the amount of the allowance;; a hearing was had and the petition was dismissed; the petitioner Nathan A. Gifford appealed.

At the hearing he was asked by his counsel: “Did you some time during the past year or so and before you filed this petition,, make your wife an offer to provide a home for her with you and live with her?” This question was excluded subject to the objection of the petitioner; he then offered a letter dated April 18, 1921, which purported to have been sent by him to his wife, and in which, among other things, he in substance requested her to-live with him, stated that they could live together comfortably on what he had, asked her if for reasons therein stated, she would not consider his offer and if she would agree to a reduction in his weekly payments to her. This letter was excluded subject to his objection, the judge stating that he would save his rights. His counsel also-asked him the following question: "Are you now, Mr. Gifford, able and willing to provide a home for your wife ... in accordance with your means? ” This question was excluded, the judge stating that he would save the petitioner’s rights.

The statute, R. L. c. 153, § 33, under which the original decree in favor of the wife was entered, authorized the court to revise and alter it “or make a new order or decree, as the circumstances of the parents or the benefit of the children may require.” The husband was empowered under the statute to bring a petition for an annulment or modification of the decree. As was said in Barney v. Tourtellotte, 138 Mass. 106, at pages 108, 109: "A decree under this statute has not the elements of a judicial separation. It does not suspend the marriage status; ... it does not authorize the wife to live permanently apart from her husband, nor establish a relation which she has a right to maintain until she consents to change it; if her husband removes the cause of the separation, it would be her duty to return to him, and it would be the duty of the court to revoke its decree.” Doole v. Doole, 144 Mass. 278. Kerr v. Kerr, 236 Mass. 353.

We are of opinion that the husband was entitled to show that he was able and willing to provide a home for his wife, that he had offered to do so, and that he had removed the cause of the separation. He was also entitled to show that his circumstances, and those of his wife were so altered since the entry of the original decree in 1915 that he was unable to comply with its terms. Of course the original decree is conclusive and binding upon the parties respecting all matters which were in issue or were necessarily involved and actually tried and determined by it, until modified or reversed. Austin v. Austin, 233 Mass. 528. We think.that the testimony excluded should have been admitted as it bore directly upon the issue involved; the question, whether the husband’s offer to provide a home for his wife if she returned to him was made in good faith, was for the court. The letter was not inadmissible as a self-serving statement, but contained an offer to support his wife if she would live with him; that was a material issue. If he had made the same offer to her verbally under such circumstances and it was not a private conversation between husband and wife, G. L. c. 233, § 20, it would have been competent. Whether the statement was in writing or was made orally, it was admissible to determine his intent or mental purpose. If his acts and conduct were shown to be wholly inconsistent with such intent, the evidence of his intent would obtain little or no credit. Sherman v. Sherman, 193 Mass. 400. Carriere v. Merrick Lumber Co. 203 Mass. 322.

If we assume that it was necessary for him to show that the original decree had been fully complied with before he was entitled to be heard on the pending petition, it appears that there was such compliance during the hearing.

We are of opinion that the ruling excluding the evidence was error, and that a new trial should be granted.

The question whether the husband’s motion to amend his petition should have been allowed was within the discretion of the judge.

The decree is to be reversed and a new trial granted.

Ordered accordingly.