329 Mass. 643

December 2, 1952 - January 6, 1953

Suffolk County


After the entry of a decree nisi for divorce from which the libellee husband appealed, the trial court had power under G. L. (Ter. Ed.) c. 208, Section 38, as appearing in St. 1933, c. 288, to make an award of counsel fees to be paid by the husband for the purpose of enabling the wife to defend against the appeal.

LIBEL for divorce, filed in the Probate Court for the county of Suffolk on October 16, 1951.

The libellee appealed from an order by Poland, J.

John F. Lombard, (John B. Delaney with him,) for the libellee.

Frank Glazer, for the libellant.

LUMMUS, J. In this case the wife obtained a decree nisi for divorce on March 10, 1952. The husband appealed. The wife applied to the Probate Court for an allowance with which to defend against that appeal. On May 26, 1952, the judge ordered the husband to pay into court $500 for the use of the wife. The husband appealed from that order. On request of the husband, the judge found as the material facts that the wife intends to defend against the husband's appeal in good faith, that to prepare her case will require analysis, condensation and summarizing of the evidence, and that the husband is able to pay and in fairness ought to pay the wife $500 for that purpose.

By G. L. (Ter. Ed.) c. 208, Section 38, as it appears in St. 1933, c. 288, the court in a divorce case may "award costs and expenses" to either party "whether or not the marital relation has terminated." Such an award may include counsel fees. Hayden v. Hayden, 326 Mass. 587 , 594. Sack v. Sack, 328

Page 644

Mass. 600, 605. The principle, stated in Hayden v. Hayden, supra, at page 595, that the power to award costs and expenses ceases when the litigation is terminated, has no application here, for the appeal kept the litigation alive. Gale v. Nickerson, 144 Mass. 415 , 416. The amount of the allowance is supported by the findings of the judge.

Decree affirmed.