273 Mass. 62 | Mass. | 1930
This is a petition filed in 1930 for counsel fees and expenses, alleging that the petitioner’s libel for divorce was granted in 1920 and the custody of their minor son given to George R. Wallace, Sr.; that the decree became absolute in 1921 and thereafter, upon petition of the libellant, a new decree was entered in 1928 by agreement of the parties awarding the care and custody of the child to her, and provision was made for his education and care but no order was made therein for attorneys’ fees; that it has been necessary to have numerous hearings involving the employment of counsel for the interpretation and enforcement of the decrees; that the libellant has incurred obligations for counsel fees and disbursements since the decree for divorce, exclusively in matters relating to the care, custody and welfare of the minor child and has no means or funds with which to meet these obligations, while the libellee is amply able to pay them. The libellee demurred to the petition on the grounds that the matters contained therein are insufficient in law to enable the petitioner to obtain the relief prayed for and that upon the allegations the court had no authority to award counsel fees to the petitioner. The trial judge ruled that the only ground upon which an allowance for counsel fees and expenses can be awarded is under G. L. c. 208, § 17, and that' such an award must be made upon a petition filed prior to the entry of a decree absolute in the divorce proceedings, and that such an allowance cannot be made for legal services and expenses incurred upon a petition for modification of that decree relating to care, custody and maintenance of the minor children of the parties. A decree was entered sustaining the demurrer. The trial judge reported the case to the full court upon the petition, demurrer, order and decree with a stipulation: "If the court erred in sustaining the demurrer the case is to be remanded to the Superior Court for further proceedings; if the court did not err, petition is to be dismissed.”
The power and jurisdiction of the court in granting divorces are entirely statutory. The course of the proceedings
In accordance with the terms of the report the order must be
Petition dismissed.