Smith v. Smith

77 N.E. 522, 190 Mass. 573, 1906 Mass. LEXIS 1129

Opinion

Loring, J.

[After the foregoing statement of the case.] It is not necessary to decide whether the original decree in the case at bar was a final adjudication on the alimony to be paid. If this order is taken to have been a final adjudication upon the question of alimony (using that word to mean payments at stated periods), in case there was a change after the date of the decree in the circumstances of the parties or either of them, which in justice required that additional alimony should be paid, the court could- make the order for further alimony. It is not necessary in the case at bar to consider what the rule is in case of a decree or order for the payment of a sum in gross by way of alimony. Alimony, like the custody of children, (as to which see R. L. c. 152, § 25,) is a matter which from its very nature cannot be finally disposed of. If, for example, a large annual allowance by way of alimony were made to a wife, to be paid by a wealthy husband, and without his fault the husband afterwards should be reduced to penury, there ought to be power in the court to make such change in the alimony decreed to be paid by him as this change in his circumstances required.

Such is the rule at common law in England, De Blaquiere v. De Blaquiere, 3 Hagg. Ecc. 322, and, by statute at least, in this Commonwealth. By Rev. Sts. c. 76, § 36, (following a less explicit provision in St. 1785, c. 69, § 5,) it is provided that “ after any decree for alimony, . . . the court may, from time to time, on the petition of either of the parties, revise and alter their decree, . . . respecting any of the said matters, which they might have made in the original suit.” This has been re-enacted (Gen. Sts. c. 107, § 47; Pub. Sts. c. 146, § 39) and is now R. L. c. 152, § 33. Under this act the amount of alimony may be changed if there is a change in the circumstances of either party making a change just. Knapp v. Knapp, 134 Mass. 353. Southworth v. Treadwell, 168 Mass. 511.

The respondent in the petition now before us has contended that R. L. c. 152, § 33, is limited to a revision of a decree for alimony “ pending the full performance of the original decree.” But in our opinion that is not the true construction of the act.

There is nothing in the language of the act or in the nature of the provisions of it which gives countenance to that construction. The language of the original act (Rev. Sts. c. 76, § 36) is “ after any decree for alimony,” “ the court may from time to time,” “ revise and alter their decree,” and this wording remains substantially unchanged. See R. L. c. 152, § 33.

There is no reason for limiting a court which is to have power to revise a decree to the time during which the decree is being performed. If, for example, a court on a bill to charge land with payment of an annuity makes a decree establishing such a charge on the land, the court has no power to revise or alter the decree after it is once made, whether the appeal is made during the life in question or' after the death of the life tenant in case payment of the annuity was in arrears when she died. The inherent difference between a decree in an ordinary case (such, for example, as a decree establishing a charge on land to pay an annuity) and a decree for alimony does not result in a power to change pending performance, but does result in a power to make a change in the decree for alimony whenever a change in circumstances demands that a change should be made in the decree.

Finally, Knapp v. Knapp, 134 Mass. 353, is an authority against the respondent. That was a writ of scire facias, brought against the executrix of a libellee who had been ordered, by a decree made twenty-six years before, to pay to his wife by way of alimony $250 a year, none of which ever had been paid. The writ was denied by a single justice. On appeal that order was reversed and the case was directed to stand for hearing because the court had power at that time to revise and alter the decree.

In the case at bar, we are of opinion, with some hesitation, that the order allowing further alimony must be construed to be a finding that there was a change in the circumstances of the libellee (the present petitioner).

Decree affirmed.