Home TERESA MARY SALWAY, petitioner.

363 Mass. 884

June 4, 1973

This petition, which we treat as seeking leave to appeal late under G. L. c. 214, Section 28, as amended by St. 1960, c. 207, Section 2, was argued before a single justice of this court by the petitioner, pro se, and by counsel for the Medical Records Department of St. Elizabeth's Hospital, the respondent. The petitioner appeals to the full court from the decree denying her petition. There was no report of the proceedings before the single justice. Findings of material facts were not requested nor were they voluntarily reported. G. L. c. 214, Section 23. Therefore, "[t]he entry of the decree imports a finding of every fact essential to the entry of the decree." Poll-Parrot Beauty Salons, Inc. v. Gilchrist Co. 296 Mass. 451 , 452. Commissioner of Ins. v. Commonwealth Mut. Liab. Ins. Co. 297 Mass. 219 , 220. In such circumstances, the decree is conclusive. Bannish v. Bannish, 357 Mass. 279 , 281. Homes Ins. Co., petitioners, 357 Mass. 769 . Bosanquet, petitioner, 357 Mass. 773 . There is nothing to show an abuse of discretion in the denial of the petition.

Decree affirmed.

Home ANN A. MADDEN & another vs. WILLIAM C. MADDEN.

363 Mass. 884

June 4, 1973

This is an appeal by William C. Madden (William) from a probate decree awarding counsel fees and expenses to appellee's (Ann) counsel in the amount of $16,000 on a petition relating to separate support. The separate support proceedings are related to prior proceedings in the case of Madden v. Madden, 359 Mass. 356 . In his "Report of the Material Facts" the probate judge found in part as follows: "This was a very lengthy marital relations case, which extended over a period of 3 1/2 years and presented many involved problems requiring painstaking study and research. Counsel for both sides stipulated that the appellee's counsel spent 13 days on trial in this case and in addition performed 320 hours on related work. . . . I find that . . . Madden is a lifetime beneficiary of two trust funds worth almost $2,000,000. I find that the amount of $16,000 is fair and reasonable compensation for counsel fees in view of the time involved, the complex questions presented, the difficulty of the case, the uncertainty of, and the delay in, payment, the equities in the case and the ability to pay of . . . Madden." The stipulation provided: "[i]t is further stipulated that counsel for the Appellee has received on account of legal services the sum of Two Thousand Five Hundred ($2,500.00) Dollars from the Appellee, Ann A. Madden, which was taken into account by the Probate Court when it made the award of $16,000." William argues that the fee awarded is excessive, and the wife's lawyer was not retained by him and therefore his fees for services should not be on the basis of a voluntary arrangement between attorney and client. He urges further that in the circumstances the fee should be set by standards similar to those for compensating public officers such as masters and auditors. Ann argues that although William did not initiate the instant suit he brought it about by abandoning her and

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their three minor children; that he attempted to get a divorce by defrauding the Georgia courts with misrepresentations and wilful omissions of fact in his petition for divorce in that jurisdiction. A review of the entire record discloses no error. G. L. c. 209, Section 33. G. L. c. 208, Section 38. Nothing in Hayden v. Hayden, 326 Mass. 587 , and Sack v. Sack, 328 Mass. 600 , relied on by the appellant requires a different conclusion. On the contrary, in the circumstances of this case we agree that counsel for the appellee is fully entitled to the amount awarded by the Probate Court. The decree is affirmed. Costs and expenses are to be in the discretion of the Probate Court.

So ordered.