Divorce, Objection to decree absolute. Rules of Court. Superior Court.
The Superior Court had authority to establish Divorce Rule 6, relating to objections to the granting of a decree absolute.
Objections, "subscribed and sworn to" by the libellee in a suit for divorce, which merely set out that, in granting a decree nisi, the "court was misled and deceived," that the decree "was procured by false and perjured testimony introduced by the libellant," that since the granting of the decree "new evidence unknown to your libellee at the time of the hearing" of the libel had "come to her knowledge," which evidence was "material, and was not within her knowledge or control at the time of granting of said decree," properly may be dismissed as not complying with the requirement of Divorce Rule 6, that the facts upon which such objections are founded shall be "set forth specifically."
A judge, before whom was tried a libel for divorce and by whose order a decree nisi had issued, within six months after which objections were filed to the entry of a decree absolute which could not be sustained because they did not comply with the requirements of Divorce Rule 6, may refuse to entertain a "supplemental objection" filed eight months after the entry of the decree nisi, which is not an amendment of the objections formerly filed but contains a new charge alleging adultery by the libellant within six months after the entry of the decree nisi. Whether, as a matter of discretion, the judge had power to allow new objections to be filed more than six months after the entry of the decree nisi and before the entry of a decree absolute, or to allow those formerly filed to be amended, was not determined, because in this case the judge refused to exercise any discretion in favor of the objections.
De COURCY, J.
"Decrees of divorce shall in the first instance be decrees nisi, and shall become absolute after the expiration of six months from the entry thereof, unless the court before the expiration of said period, for sufficient cause, upon application of any party interested, otherwise orders." R. L. c. 152, § 18. Divorce Rule 6 of the Superior Court provides: "At any time before the expiration of six months from the granting of a decree of divorce nisi, the libellee, or any other party interested, may file in the office of the clerk for the county in which the libel is pending, a statement of objections to an absolute decree, which shall set forth specifically the facts on which it is founded, and be verified by affidavit. Such decree shall not become absolute until such objections have been disposed of by the court." The court had authority to establish this rule, and it has the force of law. Pratt v. Pratt, 157 Mass. 503, 505.
The decree nisi in this case was entered on January 26, 1917. The objections filed by the libellee on July 25, 1917, were rightly dismissed as not in compliance with said rule. The first and second causes assigned were not specific allegations of facts. May v. Wood, 172 Mass. 11. Brown v. Brown, 207 Mass. 254. The third and fourth were insufficient for the same reason, and had the additional defect that they did not comply with the established practice as to newly discovered evidence. Rule 24, of the Superior Court. Borley v. Allison, 181 Mass. 246. And there was no error in dismissing the supplemental objection. This was not filed until September 29, 1917; and it was not an amendment of the original objections, but an entirely new charge of adultery, alleged to have been committed by the libellant within six months after the entry of the decree nisi. The rule of court limiting the time within which objections might be filed was binding upon the trial judge. It is unnecessary to consider whether the court has discretionary power to allow new objections to be filed, or old ones to be amended, after the expiration of six months from the entry of a decree nisi but before the decree is made absolute, because here the judge expressly refused to exercise any discretion he might have in favor of entertaining the objections. See Pratt v. Pratt, supra; Norton v. Lilley, 214 Mass. 239.
The libellee's requests for rulings have not been argued. But so far as applicable to the facts they are disposed of by the foregoing.
Exceptions overruled. Appeal dismissed.