3 Mass. App. Ct. 358 | Mass. App. Ct. | 1975
The respondent (Barbara) appeals from a decree of the Probate Court entered on December 6, 1973, purporting to modify a July 14, 1972, decree nisi which had granted her a divorce and given the petitioner (Lawrence) custody of the one child of the marriage. No provision for alimony or for care and maintenance of the child was included in the original decree, which had become absolute in the interim. The evidence is not reported, but the judge made a report of material facts.
It was error to issue a decree ordering conveyance of Barbara’s interest in the real estate pursuant to G. L. c. 208, § 34. Section 34 provides for a decree of part of the wife’s estate, in the nature of alimony, to the husband. See Oder v. Ober, 1 Mass. App. Ct. 32, 35 (1973). However, as Lawrence points out in his brief, “neither of [his] ... [petitions refer [sic] to ‘alimony’ as they are basically concerned with child support.” Lawrence’s specifications also indicate that his request for support is limited only to the needs of the child.
The court was without authority to make a decree under
Moreover, the report of material facts is not adequate to support the decree, as that report fails to set out the facts necessary to permit us to review a decree for the care and maintenance of a child. See Topor v. Topor, supra, at 475-477. See generally, Vergnani v. Vergnani, 321 Mass. 699, 700-701 (1947); Vergnani v. Vergnani, 321 Mass. 703, 704 (1947). (For discussion of the circumstances to be taken into consideration in making such a decree, see Topor v. Topor, supra; Coe v. Coe, 313 Mass. 232, 235-237 [1943] ; Whitney v. Whitney, 325 Mass. 28, 30-31 [1949].)
For the above reasons the decree must be reversed, and the petitions dismissed without prejudice to Lawrence’s filing a new petition for the care and maintenance of the minor child.
So ordered.
These inartfully drawn petitions, apparently aimed only at support for the child, pray for relief under inapplicable sections of the General Laws. (G. L. c. 208, § 34, provides for alimony, and G. L. c. 208, § 34A, provides for the enforcement of an alimony decree ordering conveyance of real estate. See Dee v. Dee, 1 Mass. App. Ct. 320, 323-324 (1973).
There is no authority to grant alimony under G. L. c. 208, § 34, by modifying a decree nisi which contains no provision for alimony. Rather a new decree is required. Compare G. L. c. 208, § 34, subsequently amended by St. 1974, c. 565, with G. L. c. 208, § 37. See Baird v. Baird, 311 Mass. 329, 331-332, 333-334 (1942); Kinosian v. Kinosian, 351 Mass. 49 (1966).
It is not clear which of the two petitions the decree is based upon, or whether it is based upon both considered jointly.