283 Mass. 241 | Mass. | 1933
This is an appeal from a decree of the Probate Court for the county of Middlesex, whereby said court overruled the objections of the libellant to the decree nisi becoming absolute in the libel for divorce brought by her against Romano Nicolai, to its refusal to give certain requests for rulings of law, and to its refusal to allow the libellant to have her libel dismissed.
The material facts are as follows: On July 16, 1931, Palmira Nicolai brought a libel for divorce against her husband, Romano Nicolai, alleging cruel and abusive treatment on specific days and at divers other times. The libel alleged “that there has been born to them no children who
On April 25, 1932, the libellant filed objections under Divorce Rule 4. of the Probate Court with six affidavits.
The trial judge, after hearing the objections, found as a fact that the libellant knew that the proceedings before him were upon a libel for divorce and not upon a petition for separate support, that her counsel acted in good faith, and "his client was informed of everything that was being done for her and that she was satisfied at the time”; but, the judge stated, "it is my opinion that since the decree nisi was entered she has been listening to other people and is now dissatisfied because she feels that she has not received a sufficient amount of money as alimony. I question her good faith in bringing these objections.” He ruled "that after a complete hearing she has had her day in court and that the libellee has made considerable sacrifice to meet the obligations of the decree as entered in said divorce libel”; that "inasmuch as the libellee gave up an antenuptial agreement and made a considerable sacrifice in raising $3,000 that the reasons set forth in her objections would not warrant . . . [him] in sustaining her objections.” He further stated “that the libellee has complied with the decree nisi in all respects and that under the circumstances here disclosed, it would not be equitable to sustain the objections to decree absolute, . . . [and] therefore [he] overrule[d] the objections.” On May 18, 1932, the trial judge refused formally to stay the entry of an absolute decree, by filing in the Probate Court an interlocutory decree which reads "Objections overruled after hearing.” On May 16, 1932, the libellant filed in the Probate Court a paper entitled, "Libellant’s Dismissal of Libel,” which reads: "Now comes the libellant in the above entitled cause and dismisses her libel.”
The order overruling the libellant’s objections based upon the ruling that "under the circumstances here disclosed, it
We think upon consideration of all the facts shown by the report and record the trial judge should have ordered a decree permitting the libellant to discontinue and dismissing her libel. It follows that the order or decree “Objections overruled after hearing” must be reversed.
Decree accordingly.