Oakes v. Oakes, 266 Mass. 150

Oakes v. Oakes

266 Mass. 150 | Mass. | 1929

Carroll, J.

This is an appeal by the libellant in a divorce proceeding from a decree of the Probate Court entered September 10, 1928, which modified a decree for alimony entered for the libellant on December 12,1923, when she was granted a divorce nisi which subsequently became absolute. At the time the decree nisi was entered the parties made a written agreement providing that the husband should pay *152the libellant $125 each month for a period of six months, and thereafter, as long as the libellant remained unmarried, the sum of $108.34 each month. In the original decree it was stated that the libellee “be ordered to pay alimony in ac- ' cordance with the agreement on file.” In the decree of September 10, 1928, it was ordered that the monthly payments be reduced “from $108 to $50 per month until the further order of this court.” The Probate Court was authorized to revise and alter its decrees concerning alimony, and “make any decree relative thereto which it might have made in the original suit.” G. L. c. 208, §§ 34, 37.

There was no report of the evidence. On the facts found by the judge there was no error in the decree modifying the original decree. The so called agreement between the husband and wife did not in any way deprive the court of its power and jurisdiction to alter its former decree providing for the amount of alimony to be paid. The agreement was between husband and wife and was a nullity. G. L. c. 209, § 2. The judge in deciding the amount of alimony is to act on his own responsibility. Even where there is a contract between the husband and wife with a trustee, as in Kerr v. Kerr, 236 Mass. 353, the power and duty of the court are not taken away by such an agreement. The judge may give due consideration to such contracts when they are free from fraud, collusion or coercion, but his power is not abrogated. He is required to use his sound discretion and best judgment in passing on the question. He could under the statute modify the former decree, and if in his opinion the amount of alimony should be reduced he could revise the . decree accordingly. Southworth v. Treadwell, 168 Mass. 511. Brown v. Brown, 222 Mass. 415.

Decree affirmed.