Saraceno v. Saraceno

341 N.E.2d 261, 369 Mass. 967

• Court: Massachusetts Supreme Judicial Court
• Decided: January 29, 1976
• Status: Published

Opinion

The libelee husband appeals from decrees which (a) dismissed his petition that support orders for the wife be terminated and (b) modified an earlier support order by increasing the amount of the allowance for the wife’s support and by granting counsel fees and expenses. There was ample evidence to justify the judge’s finding that a material change in circumstances warranted an upward modification of the support order previously entered in favor of the wife. See Sloane v. Sloane, 349 Mass. 318, 320 (1965). The husband’s assertion that G. L. c. 208, § 34, is unconstitutional as discriminatory against husbands is wholly without merit. At the time of the decree in this case, G. L. c. 208, § 34, had been amended by St. 1974, c. 565, to eliminate any possible discrimination in alimony between husbands and wives. For § 34 as now amended, see St. 1975, c. 400, § 33. Moreover, the husband had no standing to object to § 34 as it appeared prior to St. 1974, c. 565, because he was not seeking alimony. Similarly, it is doubtful that the husband has standing to object to the provisions of G. L. c. 208, § 37, concerning revision of alimony allowances to a wife. If he does have such standing, equal treatment in allowing revision of alimony as to either spouse is the appropriate result, not the disallowance of revisions to both. See House v. House, 368 Mass. 120, 123 (1975). For § 37 as now amended, see St. 1975, c. 400, § 38. The decision to allow counsel fees and expenses to the wife was in the discretion of the judge. The wife’s counsel fees and expenses in connection with this appeal may be allowed in the discretion of the Probate Court.

Decrees affirmed.