3 Mass. App. Ct. 750

May 16, 1975

This is a bill in equity brought by a wife against her husband and his friend Romeos to set aside a second mortgage given by the husband to Romeos on the family residence. When the mortgage was given, there was pending a libel for divorce brought by the wife in which she sought an order that the husband convey his interest in the property to her as alimony. G. L. c. 208, Sections 34 and 34A. The defendants have appealed from the decree of the Probate Court setting aside the mortgage. Where as here the evidence is reported and the judge has made a report of material facts, his findings are not to be disturbed unless plainly wrong, but we may find facts in addition to those found by him. Jacobson v. Jacobson, 334 Mass. 658, 659 (1956). It is undisputed that title to the property is now held by the wife as trustee for the minor children of the marriage. (1) The evidence supports her claim and the conclusion of the judge that the mortgage was given by the husband with the connivance of Romeos for the fraudulent purpose of reducing the husband's equity in the property in anticipation of its conveyance to her by court order. (2) We find no merit in the defendants' contentions (a) that the bill insufficiently alleges fraud and (b) that the relief afforded by the judgment is inconsistent with the relief prayed for. (3) The remaining contention of the defendants, which hardly reaches the level of argument (see Bruno v. Seymour, 1 Mass. App. Ct. 857 [1973]), that the judge erred in ordering the conveyance in the divorce proceedings, was not asserted in their pleadings or raised in the course of trial, and therefore may not be raised here for the first time on appeal. Peters v. Peters, 8 Cush. 529, 543-544 (1851). Greene v. Greene, 2 Gray 361, 366 (1854). Davis v. Leary, 177 Mass. 526, 529 (1901).

Page 751

Robinson v. Trustees of the N.Y., N.H. & H. R.R. 318 Mass. 121, 134 (1945), and cases cited. Contrast Old Colony Trust Co. v. Porter, 324 Mass. 581, 585-589 (1949).

Decree affirmed.