1. The libellee’s appeal from the decree nisi granting the libellant a divorce for cruel and abusive treatment brings no issue before the court. Under the rule of
MacNevin
v.
MacNevin,
The operation of the statute to make the divorce final was not suspended by the allowance on September 4, 1963, of the libellant’s motion to dismiss the appeal for failure to comply with Rule 19 of the Probate Courts (1959). An appeal was taken from the dismissal decree, and, if it was in error, the purported dismissal was of no effect. 2
Notwithstanding the foregoing, we have examined the findings and the transcript and are of the view that there *320 was no error in the entry of the decree nisi.
2. The decree modifying the divorce decree as to custody of the six year old daughter and support for the libel-lee entered September 5, 1963, was within the power of the judge and no error is shown. G. L. c. 208, §§ 28, 37. The findings and the evidence show conduct toward the libellant in the presence of the child justifying the conclusion of the judge that the libellee was an emotionally unstable person. 3 The repetition of such conduct with a serious effect ón the child was reasonably to be anticipated. The libellee objects particularly to the provision of the modified decree that “all visitation rights . . . shall be at the discretion of said libellant.” Plainly if this discretion is not exercised with considerate regard for the mother’s rights and the importance of the maternal relationship there will be occasion for reconsideration of this provision. The judge recognized and emphasized this by his concluding clause, “all until the further order of the court.”
There was no testimony as to the resources or earning power of the libellee at the time of the modification or of change in respect of these matters since the entry of the decree. The implication is, however, that the judge in the first instance deemed the alimony to be required because of the necessity of providing a home for the child and refraining from gainful employment. In any event, of course, if circumstances can be shown to a probate judge 4 justifying alimony, further modification of the decree will be within his competence, and a need for support at the time of the petition for modification would be a sufficient showing of change of circumstances. G. L. c. 208, §§ 34, 37.
The appeals from the decree nisi and from the decree dismissing the appeal for noncompliance with Rule 19 are dismissed. The decree modifying the divorce decree is affirmed.
So ordered.
Notes
Even if there were such a provision the decree nisi would have become final for the appeal was not entered in this court until March 5, 1965.
It may be questioned if Bule 19 was applicable. As in force in 1963 it provided: “Upon an appeal, where the Court under General Laws [Ter. Ed.] Chapter 215, Section 18, has appointed a stenographer to take the evidence to be reported to the Supreme Judicial Court, the appellant within thirty days of the date of the appeal, or within such time as allowed by [the] Court on application made within ten days of said appeal, shall file with the Begister for the use of the Court and for use in the preparation of the record on appeal one certified transcript of the stenographic notes taken by the stenographer. The transcript shall be subject to the right of the Court, before copies thereof are prepared for the use of the Supreme Judicial Court, to direct that the transcript be submitted to it for such correction as it may direct after hearing. When decree after rescript has been entered or after dismissal of appeal, the Begister shall notify the persons supplying the transcript to procure same within ten days, and if it is not so procured the transcript may be destroyed.” The docket does not show that a stenographer was appointed. In that event it would seem that the appeal would He, but without a report of the evidence.
Bule 19, as of March 31, 1964, was amended to read, in part, “Upon an appeal, where the Court under General Laws [Ter. Ed.] Chapter 215, Section 18, has appointed a stenographer to take the evidence to be reported to the Supreme Judicial Court, the appeUant, unless he files with the appeal a disclaimer of any right to rely upon the transcript of the evidence, shaU, within sixty days of the date of the appeal file with the Begister for the use of the Court and for use in the preparation of the record on appeal one certified transcript of the stenographic notes taken by the stenographer.”
The judge found, “At the time of the first hearing I observed enough to create a strong suspicion of emotional instability, but I was not aware of the extent thereof that later incidents disclosed.”
The judge who entered the decrees has died.