SYLVIA LEWIS DEE vs. ROBERT DEE.

GRANT, J. The question presented by the husband's appeal is whether a Probate Court, after hearing on the merits of the wife's petition brought under G. L. c. 209, Section 32 (as amended by St. 1968, c. 370), [Note 1] has power to order the husband to vacate the marital home in favor of the wife and a minor child for an indefinite period of time. The parties have stipulated that the home is held in a tenancy by the entirety, and the wife has not brought separate proceedings in equity by which she asserts rights in the home inconsistent with the existence of such a tenancy. Cf. MacLennan v. MacLennan, 311 Mass. 709, 711-713; White v. White, 322 Mass. 461, 464-465. The wife has not caused the home to be attached (G. L. c. 209, Section 33 [Note 2]). The home need not be sold, as the husband is of sufficient financial ability, apart from his interest in the home, to pay not only for the general living expenses of the wife and child but also for suitable living accommodations for them outside the home.

During the continuance of the marital relationship "[t]he . . . husband, as tenant by the entirety . . . [is] entitled to the exclusive possession and control of the premises and to the rents and profits. He . . . [has] many of the usual incidents of ownership which the wife . . . [can]not exercise during his lifetime. Indeed, the usufruct of the property . . . [is] his alone . . . ." Collins v. Croteau, 322 Mass. 291, 292. "A separate support proceeding is designed

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to secure the `temporary support' of a wife; the decree does not create a judicial separation, nor establish a permanent status for the future. `The court may not . . . provide for a division of their properties or of the property of the husband. Coe v. Coe, 313 Mass. 232. While in general the principles governing the award of alimony upon a libel for divorce are to be followed in administering the separate support statute, Williamson v. Williamson, 246 Mass. 270, 272; Coe v. Coe, 313 Mass. 232, 235, the powers granted to the court under G.L. (Ter. Ed.) c. 208, pertaining to libels for divorce, are somewhat broader than those granted by G.L. (Ter. Ed.) c. 209, §§ 32-37, in reference to separate support. Although G.L. (Ter. Ed.) c. 208, § 36, provides that in connection with a libel for divorce the court may require sufficient security for the payment of alimony according to its decree, there is no similar provision concerning allowances for separate support in c. 209.' Dunnington v. Dunnington, 324 Mass. 610, 612. See Verdone v. Verdone, 346 Mass. 263, 265." Gould v. Gould, 359 Mass. 29, 32. Thus, in the Dunnington case it was held that a Probate Court was without authority to order the husband to convey to the wife his interest in a tenancy by the entirety as security for his compliance with orders for separate support ( 324 Mass. 611-613), while in the Gould case it was held that a financially responsible husband could not be ordered to participate in a sale of the "home place" (held in a tenancy by the entirety) and a division of the proceeds with the wife ( 359 Mass. 32). [Note 3] See also Gediman v. Cameron, 306 Mass. 138, 140, where it was said (Qua, J.) that the provisions of G.L.c. 209, §§ 32-34 (and those of G.L.c. 208, §§ 17, 33, 35 and 38, made applicable by those of G.L.c. 209, § 33), are to be "construed as exclusive of all other remedies" in separate support proceedings.

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There is no difference in principle between what was held to be forbidden in the Dunnington and Gould cases and what was effectively ordered in the present case, namely, that the husband relinquish the present right to the exclusive possession and control of the marital home which flows from the tenancy by the entirety for an indefinite period of time which could extend until the death of one of the parties. The order which was entered cannot be supported by anything found in G.L.c. 208, § 34B, inserted by St. 1970, c. 472. [Note 4] There is nothing in the language or in the legislative history of that section [Note 5] which suggests that it was intended to permit anything other than an interim order of sixty days' total duration entered in advance of a hearing on the merits of a libel for divorce (G.L.c. 208, §§ 1-22), of a libel for nullity of a marriage (G.L.c. 207, § 14), or of a petition for separate support (G.L.c. 209, §§ 32-34; c. 208, §§ 17, 33, 35 and 38).

The wife's reliance on the provisions of G.L.c. 209, § 32D (inserted by St. 1970, c. 450) [Note 6] is misplaced. Although there may be situations in which that section may be brought to

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bear (see Gould v. Gould, 359 Mass. 29, 32-33) there is nothing in the language of the section itself which grants power to a Probate Court in proceedings brought under G.L.c. 209, § 32, to order a husband who is otherwise capable of providing adequate support for his wife to surrender his rights in the marital home, contrary to the rule established in the Dunnington and Gould cases. The language of § 32D was taken, with variations not here material, from that of G.L.c. 208, § 34A, inserted by St. 1963, c. 415. [Note 7] The legislative history of the latter section [Note 8] suggests no more than an intention to implement alimony decrees which might provide for the conveyance of an interest in real estate in substantially the same manner in which decrees for conveyance of real estate which are entered in ordinary equity proceedings may be implemented under the familiar and long standing provisions of G.L.c. 183, §§ 43 and 44, as amended. [Note 9] Indeed, the section last cited is expressly referred to in both G.L.c. 208, § 34A, and G.L.c. 209, § 32D.

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We conclude that the provisions of G.L.c. 209, § 32D, do not authorize what was ordered in this case.

So much of the decree as ordered the husband to vacate the marital home is reversed, and the case is remanded to the Probate Court for further proceedings in conformity with this opinion.

So ordered.

This case was initially heard by a panel composed of the Chief Justice and Justices Goodman and Grant and was thereafter submitted on the record and briefs to the other Justices, all of whom took part in this decision in accordance with the provisions of Rule 1:18 of this court.

GOODMAN, J. (dissenting). This is not a case in which the Probate Court has attempted to make a permanent division of real estate owned by husband and wife as tenants by the entirety or to compel its use as security. Coe v. Coe, 313 Mass. 232, 236. Dunnington v. Dunnington, 324 Mass. 610, 612. Gould v. Gould, 359 Mass. 29, 32. It has merely given the wife present possession of the marital home to use with her minor child whose custody she was granted. Indeed there is nothing in the decree which bars the husband's exercise in good faith of his legal right to sell or lease his present interest in the tenancy by the entirety, and it is unnecessary to consider any rights that may arise under such circumstances. This case seems to me to be governed by the Gould case, supra, upholding a provision in a Probate Court decree which granted the use of various articles of personal property [Note Dissent-1] to the wife who had moved

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from the marital home and had custody of the children, while striking down a provision for the sale of the marital home and division of the proceeds. Both the home and the personal property are treated on the same footing, both in the opinion and in the briefs; [Note Dissent-2] the only distinction made is between use without disturbing title which the court permits, and an order for sale, which is forbidden. On the basis of that distinction the Probate Court in this case, it is submitted, properly ordered that the wife have the use of the marital home.

The Judicial Council in its unfavorable report on proposed legislation which is now G.L.c. 208, § 34B (see fn. 5 of the majority opinion) states that Probate Courts do not have such power and refers to the practice of accomplishing the same result by "advis[ing] the husband at a hearing that if he insists upon staying in the marital home, the judge will make an order requiring the husband to pay rent on suitable premises to be occupied by the wife and children" (Forty-fifth Report of the Judicial Council, Pub. Doc. No. 144 of 1969, p. 51). The implication is that a support order for rent may be so high that the husband either prefers or is forced to permit the wife to remain and find other quarters for himself. This practice recognizes that where the wife is given custody of young or school age children it may be a real hardship to uproot them and that power is needed in the Probate Court to cope with this situation. The desirability of candor in the judicial process [Note Dissent-3] should persuade us, if at all possible under the statutes, that Probate Court judges should be permitted to exercise that power directly in appropriate circumstances. That power is, I believe, fairly to be found in the broad language of G.L.c. 209, § 32, which provides that "the probate court

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may . . . prohibit the husband or wife from imposing any restraint on the personal liberty of the other. . . . and . . . may make further orders relative to the support of the wife and the care, custody and maintenance of their minor children" as well as in G.L.c. 209, § 37, which gives the Probate Court the power of the Superior Court found in G.L.c. 208, § 28, to "make such decree as it considers expedient relative to the care, custody and maintenance of their minor children. . . ." See G.L.c. 209, § 33, making G.L.c. 208, § 33, applicable to separate support proceedings. What the court said in the Gould case, supra, at 33 with reference to the award of the use of the personal property is applicable to the use of the marital home: "Award of use of such personal property is entirely consistent with the concept of `temporary support.' Dunnington v. Dunnington, supra. Power to make such an award permits a sensible solution to a practical problem, and serves the `broad equitable and humane considerations' and the `principles of fair dealing between husband and wife' which are properly considered in such a proceeding."