316 Mass. 575 | Mass. | 1944
The petitioner on March 30, 1942, was granted a decree nisi of divorce for desertion, the right to resume her maiden name, and alimony in accordance with a written agreement executed January 10, 1942, in which
The petitioner contends that she was entitled as a matter of right to have the libel dismissed and the proceedings discontinued and that, while the judge might have imposed terms in granting the petition, he was without power to deny it.
The petitioner was the wife of the libellee when she filed the petition as the entry of the decree nisi did not change her marital status. Diggs v. Diggs, 291 Mass. 399. Vaughan v. Vaughan, 294 Mass. 164. Her right to have the libel dismissed or to discontinue the proceedings after a decree nisi is not strictly governed by the principles prevailing in actions at law, Alpert v. Mercury Publishing Co. 272 Mass. 39; Curley v. Boston Herald-Traveler Corp. 314 Mass. 31, or in suits in equity, Bolton v. Van Heusen, 249 Mass. 503; Gulesian v. Newton Trust Co. 302 Mass. 369, for society itself has an interest in addition to that of the two parties of record, who in some cases are adversary parties merely as a matter of form and are both bent on securing a dissolution of the marital tie in order to satisfy their own personal desires and convenience. Marriage, however, is more than a contract, Coe v. Hill, 201 Mass. 15; Murray v. Murray, 255 Mass. 19, and society in furtherance of the public welfare is solicitous in encouraging and fostering the maintenance of the marital status and in preserving and
A party who has been granted a decree nisi ordinarily has the right to have the libel dismissed or the proceedings discontinued, at least where there is no cross libel or where the libellee has not gained some material advantage since the libel was filed which it would be inequitable to destroy by dismissing the libel. Nicolai v. Nicolai, 283 Mass. 241, 247. Walton v. Walton, 86 Colo. 1, 10. Chamberlain v. Chamberlain, 108 Colo. 538. Stover v. Stover, 7 Idaho, 185. Coon v. Coon, 163 Mich. 644. Pickles v. Pickles, 70 R. I. 13. Forsby v. Forsby, 155 Wash. 33. Compare Winans v. Winans, 124 N. Y. 140; Adams v. Adams, 57 Misc. (N. Y.) 150.
The right of the petitioner to a dismissal or a discontinuance is affected by G. L. (Ter. Ed.) c. 208, § 21, as amended by St. 1934, c. 181, § 1, which reads as follows: “Decrees of divorce shall in the first instance be decrees nisi, and shall become absolute after the expiration of six months from the entry thereof, unless the court within said period, for sufficient cause, upon application of any party interested, otherwise orders. After the entry of a decree nisi, the libel shall not be dismissed or discontinued on motion of either party except upon such terms, if any, as the court may order after notice to the other party and a hearing, unless there has been filed with the court a memorandum signed by both parties wherein they agree to such disposition of the libel.” The amendment added the last sentence just quoted.
Under this statute, the court, upon the filing of objections to the decree nisi becoming absolute, could after a hearing vacate or revoke the decree nisi for any cause sufficient in law. Sanderson v. Sanderson, 271 Mass. 386. Eldridge v. Eldridge, 278 Mass. 309. The libellant in whose favor a decree nisi has been entered need not now, although he may, Nicolai v. Nicolai, 283 Mass. 241, file objections to the entry of a decree absolute, for he may proceed in accordance with the amendment and file a motion or peti
The fact that a libellee has made considerable sacrifice to meet the financial obligation placed upon him by a decree nisi is not sufficient basis to overrule the libellant’s objections to the entry of a decree absolute. Nicolai v. Nicolai, 283 Mass. 241. In the year following the decision in the Nicolai case the statute was amended by St. 1934, c. 181, § 1. It may be that one of the purposes of the amendment was to enable the court to require the payment of something in the way of restitution where property has been transferred, or money paid, to the spouse upon the entry of a decree nisi and upon the expectation that a decree absolute would be entered in the usual course. That this was one of the purposes of the amendment is further indicated by the provision in reference to the filing of a written memorandum signed by both parties agreeing that the libel may be dismissed or discontinued. See Rollins v. Gould, 244 Mass. 270.
The judge found that the petition was not brought “in good faith but [was brought] solely for the purpose” of securing a new arrangement with the libellee in reference to her support. We construe this as a finding that the petition was not brought in good faith because it was brought for a certain purpose. She had a right to have the libel dismissed or discontinued for the purpose mentioned, and the fact that the petition was brought for that purpose did not warrant the finding that it was not brought in good faith. A person entitled to a divorce but not wanting one ought not to be compelled to accept one. An innocent spouse in whose favor a decree nisi has been entered cannot be compelled to accept a decree by any action of a libellee who has been found guilty of a marital wrong. Sparhawk v. Sparhawk, 114 Mass. 355. If the libellant thought she was entitled to more for her support than the amount provided in the decree nisi, she was not obliged to permit the decree to become absolute but could obtain a dismissal or discontinuance which on the facts found would not prejudice any legal interest of the libellee or the Commonwealth. Nicolai v. Nicolai, 283 Mass. 241, 247. Merten v. Merten, 279 Mich. 33.
Upon the facts found her sole motive was to secure additional support. That motive does not establish bad faith. A decree dismissing the libel was required upon the find
Decree reversed.