Pioretta v. Pioretta

Massachusetts Appeals Court

Pioretta v. Pioretta

397 N.E.2d 1298, 9 Mass. App. Ct. 810, 1980 Mass. App. LEXIS 960

Massachusetts Appeals Court·Decided January 3, 1980·Published

Opinion

1. It was error to dismiss the complaint solely for the reason that no separation agreement had been filed within the ninety-day period contemplated by the first paragraph of G. L. c. 208, § 1A (as appearing in St. 1975, c. 698, § 2). Affidavits by both parties which met the requirements of (b) of that paragraph had been filed with the complaint; when a separation agreement meeting the requirements of (c) of that paragraph was filed (some ten months after the filing of the complaint), the provisions of the fifth paragraph of G. L. c. 208, § IB (as also appearing in St. 1975, c. 698, § 2), required that the complaint stand for processing on the merits in accordance with the provisions of § 1A. 2. There was no error in the original order or judgment of dismissal which was entered on February 14, 1979, following the judge’s findings that “the separation agreement . . . does not make proper provisions for support and maintenance, alimony and disposition of marital property.” It is clear from the trial transcript that in making those findings the judge considered and weighed all the factors (except marital fault) which are listed in G. L. c. 208, § 34 (as appearing in St. 1977, c. 467), as to which any evidence was offered by [811] the parties (see Putnam v. Putnam, 7 Mass. App. Ct. 672, 673-674 [1979]) or as to which the judge was able to elicit evidence by his own interrogation of the parties. Those findings were well within the permissible limits of the judge’s discretion (see Bianco v. Bianco, 371 Mass. 420, 422-423 [1976]; Rice v. Rice, 372 Mass. 398,400-401 [1977]) and were undoubtedly impelled by the undisputed fact that the plaintiff, the only wage earner, had a $12,000 equity in real estate which could have been liquidated (if necessary) in order to provide support for the defendant until such time as she might complete her professional training (approximately four months) and be in a position to support herself. See Krokyn v. Krokyn, 378 Mass. 206, 209-210, 213-214 (1979); Topalis v. Topalis, 2 Mass. App. Ct. 530, 531-532 (1974); Ricciardelli v. Ricciardelli (No. 1), 4 Mass. App. Ct. 114, 119 (1976). The order of dismissal entered on February 16,1979, is vacated; the order or judgment of dismissal without prejudice which was entered on February 14, 1979, is reinstated and, as so reinstated, is affirmed.

The case was submitted on briefs. Wayne M. Boylan for the plaintiff. Robert A. Gordon for the defendant.

So ordered.

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1. It was error to dismiss the complaint solely for the reason that no separation agreement had been filed within the ninety-day period contemplated by the first paragraph of G. L. c. 208, § 1A (as appearing in St. 1975, c. 698, § 2). Affidavits by both parties which met the requirements of (b) of that paragraph had been filed with the complaint; when a separation agreement meeting the requirements of (c) of that paragraph was filed (some ten months after the filing of the complaint), the provisions of the fifth paragraph of G. L. c. 208, § IB (as also appearing in St. 1975, c. 698, § 2), required that the complaint stand for processing on the merits in accordance with the provisions of § 1A. 2. There was no error in the original order or judgment of dismissal which was entered on February 14, 1979, following the judge’s findings that “the separation agreement . . . does not make proper provisions for support and maintenance, alimony and disposition of marital property.” It is clear from the trial transcript that in making those findings the judge considered and weighed all the factors (except marital fault) which are listed in G. L. c. 208, § 34 (as appearing in St. 1977, c. 467), as to which any evidence was offered by [811] the parties (see Putnam v. Putnam, 7 Mass. App. Ct. 672, 673-674 [1979]) or as to which the judge was able to elicit evidence by his own interrogation of the parties. Those findings were well within the permissible limits of the judge’s discretion (see Bianco v. Bianco, 371 Mass. 420, 422-423 [1976]; Rice v. Rice, 372 Mass. 398,400-401 [1977]) and were undoubtedly impelled by the undisputed fact that the plaintiff, the only wage earner, had a $12,000 equity in real estate which could have been liquidated (if necessary) in order to provide support for the defendant until such time as she might complete her professional training (approximately four months) and be in a position to support herself. See Krokyn v. Krokyn, 378 Mass. 206, 209-210, 213-214 (1979); Topalis v. Topalis, 2 Mass. App. Ct. 530, 531-532 (1974); Ricciardelli v. Ricciardelli (No. 1), 4 Mass. App. Ct. 114, 119 (1976). The order of dismissal entered on February 16,1979, is vacated; the order or judgment of dismissal without prejudice which was entered on February 14, 1979, is reinstated and, as so reinstated, is affirmed.

The case was submitted on briefs. Wayne M. Boylan for the plaintiff. Robert A. Gordon for the defendant.

So ordered.

Pioretta v. Pioretta, 397 N.E.2d 1298, 9 Mass. App. Ct. 810, 1980 Mass. App. LEXIS 960 (Mass. Ct. App. 1980).

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