Home ELWYNN J. MILLER vs. JEAN M. MILLER.

366 Mass. 846

July 31, 1974

The petitioner (husband) appeals from a decree which reduced but did not eliminate his obligation to pay alimony to the respondent (wife). The husband sought to modify the alimony payable by him under the terms of a decree nisi granting him a divorce. The Probate Court judge found that after the entry of the decree nisi, and before the decree became absolute, the wife openly and with the intention of embarrassing and injuring the husband and his reputation "conducted herself in a scandalous manner by committing adultery to the extent that such conduct did in fact affect the . . . [husband] and his ability to carry on his business or to get new business as he had formerly done." The judge reduced the husband's alimony obligation to the wife. The wife has not appealed. The husband has, arguing that as matter of law the judge should have eliminated all alimony obligations. Our law is to the contrary. The judge has discretion concerning the reduction, if any, in alimony obligations which might be appropriate in such circumstances. G. L. c. 208, Section 37. See Graves v. Graves, 108 Mass. 314 , 317-318, 321 (1871); O'Brien v. O'Brien, 325 Mass. 573 , 577-578 (1950); Brown v. Greenlow, 330 Mass. 88 , 89-90 (1953); Richman v. Richman, 335 Mass. 395 , 396-397 (1957); Surabian v. Surabian, 362 Mass. 342 , 348-349 (1972). There is no showing that the judge abused his discretion. Because the wife has not appealed, it is not open to her to object to the decree. Brown v. Greenlow, supra, at 90.

Decree affirmed.

Home TRA-JO CORPORATION & another vs. TOWN CLERK OF METHUEN & another.

366 Mass. 846

October 16, 1974

By a petition for a writ of mandamus the petitioners challenged the validity of a so called moratorium on the construction of residential building units in new subdivisions in Methuen. The moratorium was purportedly adopted on May 21, 1973, as a zoning provision by vote of the town council, "the legislative body" which the parties agree "has been substituted for the `Town Meeting.'" This provision restricted the approval of any residential building unit "until such time as the presently existing zoning ordinance and zoning map can be revised and amended in accordance with a comprehensive zoning plan, and no later than September 23, 1974." Exemptions were provided for lots not requiring prior subdivision approval by the planning board and lots shown on subdivision plans approved prior to March 23, 1973. This petition was filed on February 8, 1974, more than eight months after the adoption of the challenged zoning provision. Although a statement of agreed facts was filed promptly and the matter was reserved and reported to the full bench of this court by a single

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justice on March 7, 1974, no request was made by the petitioners to advance the case for prompt hearing before the full court. The case thus was placed in the normal course on the list for hearing in October of 1974, which was, of course, after the expiration of the moratorium. On August 30, 1974, the case was submitted on briefs by agreement of the parties. At this point all but twenty-four days of the sixteen months of the moratorium had elapsed. The parties were advised early in September that a decision could not be rendered before the issues would become moot on September 23. Each side requested, however, that we determine the validity of such a moratorium, urging that it presents a question of first impression in the Commonwealth capable of repetition, yet evading review. See Karchmar v. Worcester, 364 Mass. 124 , 136 (1973), and cases cited. We believe, however, that the determination of cases of this character may depend on their particular facts and that judicial review can often be obtained in such situations by litigation, promptly commenced and diligently pursued. We therefore remand the case to the county court with directions to dismiss the petition because the case has become moot. See Reilly v. School Comm. of Boston, 362 Mass. 689 , 696 (1972).

So ordered.