296 Mass. 271 | Mass. | 1936
The Probate Court for the county of Bristol on December 18, 1908, on the petition of Ellen M. F. Rosa
There was no error.
The power conferred by G. L. (Ter. Ed.) c. 209, § 32, on a probate court entering a decree for the separate support of a wife to “make further orders relative to the support of the wife and . . . from time to time . . . [to[ revise and alter such order or make a new order or decree” extends to the termination of the decree on an adequate ground arising after such decree was entered. Gifford v. Gifford, 244 Mass. 302, 305. Williamson v. Williamson, 246 Mass. 270. Proceedings for separate support “are designed to secure the temporary support of a wife . . . while the marriage relation exists and the cause for separation continues.” Doole v. Doole, 144 Mass. 278, 279-280. See also Barney v. Tourtellotte, 138 Mass. 106, 108-109; Slavinsky v. Slavinsky, 287 Mass. 28, 31. Separate support is dependent on the existence of the marriage relation. Termination of that relation by a divorce decreed in another jurisdiction, valid and effectual in this Commonwealth, entitles the husband to be discharged from his liability for payments, under the decree for separate support, which had not become due at the time of the divorce. See Bloedorn v. Bloedorn, 76 Fed. (2d) 812, 814. We need not inquire whether a divorce discharges the husband from such a liability without a decree to that effect (see
On the findings of the probate judge the marriage relation between the parties was terminated by a divorce decreed in Rhode Island, valid and effectual in this Commonwealth. An interlocutory decree of divorce was entered in the Superior Court of Rhode Island on January 14, 1936, and a final decree on July 15, 1936. The probate judge found “that the relation of husband and wife ceased on the entry of said final decree of divorce on July 15, 1936.” The specific facts stated are not inconsistent with this conclusion. See Columbian Insecticide Co. of Boston v. Driscoll, 271 Mass. 74, 77. The judge found that “the proceedings in the divorce case were regular and in accordance with the law of Rhode Island.” The statutes of that State authorized the entry of “a decree divorcing the parties from the bond of marriage” if they had “lived separate and apart from each other for the space of at least ten years.” General Laws of Rhode Island (1923), c. 291, § 3. The divorce was granted on this ground, the court granting it having found that the parties had lived separate and apart for twenty-six years.
The judge found further that the domicil of Henry A. Rosa “has been in Portsmouth, Rhode Island, since November, 1932,” and the subsidiary findings, which need not be discussed in detail, are consistent with this finding. Henry A. Rosa, though previously domiciled in Fall River, according to the findings of the judge, “in the latter part of 1932 . . . made his permanent home” in Portsmouth, Rhode Island, and “when he moved to Portsmouth he did not do so for the purpose of obtaining a divorce but with the intention of making his permanent domicil there.” Fact and intent concurred. See Ness v. Commissioner of Corporations & Taxation, 279 Mass. 369, 372. The judge found that
The probate judge found “that the husband was obligated to pay his wife support as ordered up to . . . [July 15, 1936, and that] he is in arrears up to that time,” $465. The decree appealed from did not in terms deal with this obligation. No facts, however, are found which would support a decree relieving the husband therefrom. See Williamson v. Williamson, 246 Mass. 270. The decree of the Probate Court, therefore, should be modified by including therein a statement that it is without prejudice to the rights of Ellen M. F. Rosa to payments for separate support which became due before July 15, 1936, and as so modified is affirmed.
Ordered accordingly.