329 Mass. 92

May 7, 1952 - May 29, 1952

Norfolk County


Before entry of any decree in a divorce case, a Probate Court had authority to permit the libellee to file a late answer for the purpose of contesting the libel about three months after a hearing at which the libellant had introduced evidence sufficient to support a decree nisi.

A divorce proceeding was not properly before this court solely on an appeal from the denial by the Probate Court of a motion for the entry of a decree nisi.

LIBEL for divorce, filed in the Probate Court for the county of Norfolk on March 19, 1951.

The case was heard by Hickey, J.

C. Sheldon Williams, for the libellant, submitted a brief.

No argument nor brief for the libellee.

LUMMUS, J. This is a libel for divorce in a Probate Court on the ground of cruel and abusive treatment. At the hearing on May 17, 1951, the libellant introduced evidence which the judge finds was sufficient to support a decree nisi. The libellee came into court at a continued hearing on May 24, 1951, and expressed a desire to contest the libel. On August 15, 1951, the libellee was permitted to file a late answer. On October 10, 1951, the libellant moved for the entry of a decree nisi for divorce, which the judge denied. On October 17, 1951, the libellant appealed.

The granting of a divorce is not discretionary. The judge has no right to postpone decision indefinitely, but

Page 93

must grant the divorce if the libellant makes out a case entitling him to it. Waterhouse v. Waterhouse, 225 Mass. 228. Reddington v. Reddington, 317 Mass. 760, 764. See also Mooney v. Mooney, 317 Mass. 433. But in the instant case all that the judge did was to grant a further hearing to the libellee. That was within his power. Malcolm v. Malcolm, 257 Mass. 225. Lye v. Lye, 322 Mass. 155. The power to reconsider a case resides in a court until final judgment or decree. Peterson v. Hopson, 306 Mass. 597, 601-602. In this case no decree was ever entered, granting or denying a divorce. An appeal from a decree of a Probate Court is analogous to an appeal in equity. G. L. (Ter. Ed.) c. 215, Section 9, as it appears after St. 1945, c. 469, Section 1, and St. 1947, c. 360. No appeal except one from a final decree can come presently to this court. Lynde v. Vose, 326 Mass. 621, 622. Slater v. Munroe, 313 Mass. 538, 540. Clark v. Clark, 325 Mass. 760.

Appeal dismissed.