3 Mass. App. Ct. 729

March 31, 1975

Although the separation agreement between the parties dated March 13, 1973, did not expressly provide that it should survive the entry of a decree in any divorce proceedings which might thereafter be instituted, we think it did so by implication when it provided that the stipulated monthly payments by the husband should "continue until the death or remarriage of . . . [the] wife" (emphasis supplied). See and compare Whitney v. Whitney, 316 Mass. 367, 370-371 (1944); Freeman v. Sieve, 323 Mass. 652, 656 (1949); Hills v. Shearer, 355 Mass. 405, 408-409 (1969); Surabian v. Surabian, 362 Mass. 342, 345 (1972). Contrast Kerr v. Kerr, 236 Mass. 353, 355 (1920). The decree nisi obtained by the wife on December 5, 1973, did not expressly order the husband to comply with the support provisions of the agreement. Compare Hathaway v. Rickard, 323 Mass. 501, 503 (1948). Contrast Fabrizio v. Fabrizio, 316 Mass. 343, 344, 347 (1944); De Gategno v. De Gategno, 336 Mass. 426, 429 (1957). Although the decree (from which no appeal was taken) referred to the agreement and purported to incorporate the same by reference (see Smith v. Smith, 358 Mass. 551, 553-554 [1971]), we think it did so only by way of explaining why no order was being entered for the support of the wife and minor child. Accordingly, the court was without jurisdiction to grant the prayers of the former husband's present petition for modification of the support provisions of the agreement. Schillander v. Schillander, 307 Mass. 96, 98-99 (1940). Whitney v. Whitney, 316 Mass. 367, 371 (1944). Freeman v. Sieve, 323 Mass. 652, 657 (1949). Cannon v. Cannon, 2 Mass. App. Ct. 874 (1974). It has not been argued that the judge erred in refusing to disturb the custody provisions of the 1973 decree.

Decree affirmed.


3 Mass. App. Ct. 729

March 31, 1975

The plaintiff's motion to increase the ad damnum in the writ was properly allowed for the reasons stated by the trial judge in his memorandum and order thereon. Judgment is to be entered for the plaintiff on the verdict returned by the jury. The plaintiff is to have double costs from September 3, 1974, together with interest from that date on the amount of the verdict (and on the interest thereon), to be computed at the rate of twelve per cent per annum. G. L. c. 211A, Section 15. J. L. Vaughan Heating & Engr. Co. Inc. v. Cantor, ante, 709 (1975).

So ordered.


3 Mass. App. Ct. 729

April 2, 1975

The plaintiff's appeal from an interlocutory decree sustaining the defendant's plea in bar brings nothing before this court where, as here, the appeal taken by the plaintiff from the final decree dismissing her bill was not seasonable. G. L. c. 214, Section 19, as in effect prior to St. 1973, c. 1114, Section 62. See Radio Corp. of America v. Raytheon Mfg. Co. 300 Mass. 113, 120 (1938); Fusaro v. Murray, 300 Mass. 229, 231 (1938). It may be appropriate to add that were we to have dealt with the case on its merits, our conclusions would not have differed from those of the trial judge in sustaining the plea. As the plaintiff has conceded, if the allegations

Page 730

of her bill sound in contract, the judge was right in sustaining the plea. We would concur in the further conclusion, which we assume was reached by the judge, that certain allegations of the bill essential to the plaintiff's claim of a constructive trust in her favor are vague, conclusory and insufficient to support her claim. Compare Woodard v. Woodard, 216 Mass. 1 (1913). See Gabriel v. Borowy, 324 Mass. 231, 237-238 (1949); Ranicar v. Goodwin, 326 Mass. 710, 713 (1951); Bogert, Trusts & Trustees, Section 473, p. 30 (2d ed. 1960); Scott, Trusts, Section 468, pp. 3439-3440 (3d ed. 1967).

Appeals dismissed.